The Honorable G. Patrick Murphy of the Southern District 

of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2174

FLORENCE (CAROLYN) CROWE, on behalf of

HAROLD D. CROWE,

Petitioner,

v.

ZEIGLER COAL COMPANY, et al.,

Respondents.

Petition for Review of

an Order of the Benefits Review Board.

No. 09-BLA-0429 

ARGUED JANUARY 20, 2011—DECIDED JUNE 1, 2011

Before RIPPLE and HAMILTON, Circuit Judges, and

MURPHY, District Judge.

MURPHY, District Judge.
2 No. 10-2174

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
No. 10-2174 3

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
4 No. 10-2174

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
No. 10-2174 5

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
6 No. 10-2174

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
No. 10-2174 7

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

ALJ Hillyard stating that it had identified a surety bond

issued by Aetna Casualty and Surety Company (“Aetna”)

that covered Mr. Crowe’s claim. The letter also was sent

to Aetna and the Horizon Liquidating Trust to notify
8 No. 10-2174

them that they could seek to intervene in the modification proceeding as parties in interest.

ALJ Hillyard denied the DOL’s request to hold

Mr. Crowe’s claim in abeyance, finding that no insurer

yet had been made a party to the modification proceeding and that “[a]dding a new party at this point

would be prejudicial to [Mr. Crowe].” On the DOL’s

motion for reconsideration, ALJ Hillyard acknowledged

that, in light of the liquidation of Horizon and Zeigler

and the fact that neither Aetna nor the Director of the

OWCP had attempted to intervene in the modification

proceeding, the proceeding was without a proponent, but

nonetheless ordered briefing on the issue of modification

to go forward. In Mr. Crowe’s opening brief on modification, he argued that the modification proceeding should

be dismissed for lack of prosecution, because no party

in interest had appeared to advocate for modification.

In July 2005 ALJ Hillyard granted modification of the

2001 award of benefits to Mr. Crowe, denying benefits.

In his modification order ALJ Hillyard, though finding

both that Mr. Crowe’s argument for dismissal of the

modification proceeding was “technically accurate” and

that Zeigler’s request to develop additional medical

evidence in support of modification was moot because

Zeigler had ceased to exist, nonetheless found that

review of Zeigler’s evidence in support of modification

was required because Zeigler had been a party to the

proceeding at one time. On appeal from ALJ Hillyard’s

modification order, the BRB, like ALJ Hillyard, rejected

Mr. Crowe’s renewed request for dismissal of the modi-
No. 10-2174 9

fication proceeding, finding that Zeigler was a party to

the proceeding and that Zeigler’s counsel were representing Zeigler’s interest. Likewise, the BRB affirmed

ALJ Hillyard’s decision to credit the evidence of

Dr. Dahhan, Dr. Repsher, Dr. Renn, and Dr. Fino. However, the BRB remanded the case for a determination

by ALJ Hillyard as to whether modification would

render justice under the BLBA.

In February 2008 Travelers filed a “protective motion

for conditional intervention” in the modification proceeding, asserting that it was the successor in interest

to Aetna and that it might be liable on a surety bond if

Mr. Crowe were awarded benefits. On remand from of

the case from the BRB, Mr. Crowe argued that a grant

of modification would not render justice under the

BLBA because Zeigler had refused to pay the 2001

benefits award to Mr. Crowe and had failed diligently

to defend against Mr. Crowe’s original claim for benefits. In January 2009 ALJ Mosser, to whom the case

once again had been assigned, found that Zeigler or

its successors in interest had displayed adequate diligence in prosecuting modification and further found

that modification rendered justice under the BLBA.

Mr. Crowe appealed to the BRB, again asking that the

modification proceeding be dismissed by reason of

Zeigler’s inability, as an entity liquidated in bankruptcy,

to pursue such a proceeding. In August 2009 Mr. Crowe

died at the age of sixty-five.

In October 2009 the BRB granted Travelers leave to

intervene in the appeal from ALJ Mosser’s modification
10 No. 10-2174

order. On March 18, 2010, the BRB entered an order

finding that Travelers had brought a timely request for

intervention, because the request to intervene had

followed closely upon a decision of this Court showing

that Travelers, as Zeigler’s surety, was required to intervene to protect its interest. The BRB also affirmed

ALJ Mosser’s decision to grant modification and to terminate benefits. At the time the BRB affirmed the denial

of benefits, it granted Mr. Crowe’s widow, Florence

Crowe, leave to intervene in this matter and to be substituted for her late husband as the claimant. On

May 12, 2010, Mrs. Crowe petitioned this Court for

review of the BRB’s decision.

III. Analysis

While technically this appeal is from a decision of the

BRB, in reviewing the denial of black lung benefits, the

Court must evaluate the judgment of the ALJ, not that of

the BRB. See Collins v. Old Ben Coal Co., 861 F.2d 481, 486

(7th Cir. 1988). The Court must determine whether the

ALJ’s decision is rational, is supported by substantial

evidence, and is consistent with the law. See Migliorini v.

Director, OWCP, 898 F.2d 1292, 1294 (7th Cir. 1990). Although the Court must review the entire record, the

Court may not redetermine the facts or substitute its

judgment for that of the ALJ. See Freeman United Coal

Mining Co. v. BRB, 919 F.2d 451, 452 (7th Cir. 1990).

The Court’s review of questions of law, however, is

de novo. See Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1393

(7th Cir. 1994). “The [BRB] has the identical scope of
No. 10-2174 11

review when sitting as an appellate panel reviewing

decisions of the ALJ.” Zettler v. Director, OWCP, 886 F.2d

831, 834 (7th Cir. 1989). Judicial review of the BRB’s

decision is limited to whether the BRB adhered to its

scope of review and to whether the BRB committed an

error of law. See Old Ben Coal Co. v. Prewitt, 755 F.2d

588, 589-90 (7th Cir. 1985).

On appeal, Mrs. Crowe presents three issues for the

Court’s consideration: (1) whether the modification

proceeding giving rise to the petition in this case should

have been dismissed when Zeigler was liquidated in

bankruptcy and no other party intervened as a proponent

of modification; (2) whether ALJ Mosser abused his

discretion in finding that modification of his 2001 order

awarding benefits to Mr. Crowe rendered justice under

the BLBA where Zeigler, which never appealed the

2001 order, had willfully refused to pay benefits to

Mr. Crowe as ordered, and whether the modification

decision was otherwise arbitrary and capricious in

ignoring ALJ Mosser’s prior findings that Zeigler had

not been diligent in defending Mr. Crowe’s original

claim; and (3) whether the BRB erred in reversing ALJ

Hillyard’s 2003 order denying modification of the 2001

benefits award where the 2003 order found no error of

fact in the 2001 award. Because the Court concurs in

Mrs. Crowe’s first asserted ground for reversal, it is

unnecessary for the Court to address the other two asserted grounds for reversal.

The BLBA provides that any “party in interest . . .

including an employer” may request modification of an
12 No. 10-2174

The statute governing modification of awards of black lung 1

benefits, 33 U.S.C. § 922, in fact is a provision of the Longshore

and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-50.

It is incorporated by reference into the BLBA by way of 30 U.S.C.

§ 932(a). See Eifler v. OWCP, 926 F.2d 663, 665 (7th Cir. 1991).

award of benefits under the statute. 33 U.S.C. § 922. Also, 1

DOL regulations promulgated pursuant to the BLBA

permit any interested person to become a party to a

proceeding concerning an award of black lung benefits.

Specifically, in addition to identifying a claimant, persons

authorized to execute a claim on the claimant’s behalf, a

coal mine operator, and the Director of the OWCP as

proper parties to a black lung claim, the regulations

provide that “[a]ny other individual may be made a party

if that individual’s rights with respect to benefits may

be prejudiced by a decision to be made.” 20 C.F.R.

§ 725.360(d). The regulations provide also that an insurance carrier of a coal mine operator is a proper

party to a proceeding concerning an award of black

lung benefits. See 20 C.F.R. § 725.360(a)(4). In general, an

award of black lung benefits can be modified by an ALJ

only where such modification is desirable in order

to render justice under the BLBA. See O’Keeffe v.

Aerojet-General Shipyards, Inc., 404 U.S. 254, 255 (1971);

Old Ben Coal Co. v. Director, OWCP, 292 F.3d 533, 547

(7th Cir. 2002).

In the context of a case specifically involving, as in this

case, a claim for black lung benefits against one of Horizon’s predecessors in interest, Old Ben Coal Company
No. 10-2174 13

The Court recognizes that standing in administrative pro2

ceedings under the BLBA is determined not by Article III of

the Constitution but by DOL regulations and applicable

statutes. See, e.g., Gibas v. Saginaw Mining Co., 748 F.2d 1112,

1119 (6th Cir. 1984) (Congress may empower the BRB to adjudicate black lung benefits cases); Kalaris v. Donovan, 697 F.2d

376, 388 (D.C. Cir. 1983) (the BRB is not an Article III court but

may execute “some functions historically performed by

judges”). However, at least for purposes of this case, the

Court will assume what seems also to have been assumed in

Old Ben Coal, namely, that tests of non-constitutional standing

both in administrative proceedings under the BLBA and in

(continued...)

(“Old Ben”), this Court held that the predecessor coal

mine operator, upon liquidation in bankruptcy, ceased

to be a real party in interest to the BLBA proceedings.

See Old Ben Coal Co. v. OWCP, 476 F.3d 418, 420

(7th Cir. 2007) (“Old Ben Coal”) (“Old Ben has no possible

stake in this litigation. It is therefore not a real party

in interest, which is to say a party that has a legally

protectable interest in the outcome of the suit. It is a

party in name only.”). So too in this case: after Zeigler’s

liquidation in bankruptcy, pursuant to the same order

that liquidated Old Ben, then upon Mr. Crowe’s

request, Zeigler should have been dismissed from this

case under elementary principles of prudential standing.

See RK Co. v. See, 622 F.3d 846, 851 (7th Cir. 2010)

(citing Rawoof v. Texor Petroleum Co., 521 F.3d 750, 757

(7th Cir. 2008)) (noting that the real-party-in-interest

rule is essentially a non-constitutional, prudential limitation on standing).2
14 No. 10-2174

(...continued) 2

suits for judicial review of such proceedings are approximately

the same. See, e.g., Martin-Trigona v. Federal Reserve Bd., 509

F.2d 363, 365-66 & n.10 (D.C. Cir. 1974). 

This specific portion of the Court’s decision in Old Ben Coal 3

therefore defeats any claim by Travelers that, after Zeigler was

liquidated in bankruptcy, Zeigler nevertheless remained a viable

(continued...)

Equally importantly, in Old Ben Coal the Court specifically found that the order liquidating Horizon and its

predecessors in interest (including Old Ben and Zeigler),

did not make Horizon and its predecessors in interest

parties in interest to BLBA proceedings. The liquidation

order provided that pending black lung claims against

Horizon and its predecessors in interest “shall not

be dismissed but instead, allowed to proceed to final

adjudication with the applicable debtors as parties.” 476

F.3d at 419. The order provided also that “claims that

result in benefit awards will not be enforced against the

Debtors but rather will form the basis for collection

from any other responsible parties therefore, including

without limitation, the Debtors’ sureties under the

black lung statute.” Id. (brackets omitted). However, the

Court found that because the order liquidated Horizon

and its predecessors in interest and designated no successors in interest to those entities, the order did not

make Horizon and its predecessors in interest viable

parties to BLBA proceedings, short of intervention in

such proceedings by sureties of Horizon and its predecessors in interest or the DOL. See id. at 419-20.3
No. 10-2174 15

(...continued) 3

party to the modification proceeding at issue in this case by

virtue of the bankruptcy court’s order liquidating Zeigler.

Because the Court determines that Zeigler was no

longer a party in interest to the modification proceeding

giving rise to this appeal after Zeigler’s liquidation in

bankruptcy, the remaining issue to be decided by the

Court is an extremely narrow one: whether Travelers

sought in a timely manner to intervene in the modification proceeding upon being put on notice of its interest

in the proceeding. As already has been noted, applicable

DOL regulations permit an insurer of a mine operator

and, more broadly, any person whose rights may be

affected by a BLBA proceeding, including a modification proceeding, to be made a party to the proceeding.

See 20 C.F.R. § 725.360(a)(4), (d). Although the regulations do not specify a time within which an insurer or

other interested person must seek intervention, it seems

reasonable to suppose that the regulations contemplate

that an insurer or other person whose interests are likely

to be affected by a BLBA proceeding will seek intervention in a timely manner upon being notified of an

interest in the proceeding. Thus, the pertinent regulations

specifically provide that a request for modification of an

order for benefits under the BLBA may be “den[ied] . . . by

reason of abandonment.” 20 C.F.R. § 725.310(c).

It is apparent to the Court that Travelers did not seek

timely intervention in the modification proceeding at

issue in this case. As noted, no later than February 2005,
16 No. 10-2174

when the DOL invited Aetna, the predecessor in interest

of Travelers, to intervene in the proceeding, Travelers

was on notice that, by virtue of the surety bond issued to

Zeigler covering Mr. Crowe’s claim, Travelers had an

interest that might be impaired by the proceeding,

were Travelers, as Zeigler’s surety, required to pay

Mr. Crowe’s claim against Zeigler. Travelers argues that

its petition for intervention in the modification proceeding was timely because the petition followed closely

upon this Court’s decision in Zeigler Coal Co. v. OWCP, 490

F.3d 609 (7th Cir. 2007) (“Zeigler Coal”). Until the Court

rendered its decision in Zeigler Coal, Travelers argues, the

surety was unaware that it needed to intervene in the

modification proceeding to protect its rights. In Zeigler

Coal, the Court found that a surety of Zeigler was

entitled to intervene in a proceeding for benefits under

the BLBA, where the surety had not been aware of its

obligation to intervene until this Court rendered its

decision in Old Ben Coal earlier in the same year. See

Zeigler Coal, 490 F.3d at 610 n.1. The Court finds the

reliance of Travelers on Zeigler Coal to be misplaced.

Most importantly for purposes of this case, nothing in

the Zeigler Coal decision in any way amplified or

enlarged upon the Court’s basic holding in Old Ben Coal.

In the Old Ben Coal decision, as already has been

discussed, the Court found that Old Ben, having been

liquidated in bankruptcy and having no “palpable existence or successor,” was not a real party in interest to

a proceeding under the BLBA and thus dismissed the

case. 476 F.3d at 419. In Old Ben Coal the Court held

further that “[a]ny entity, such as an insurance company
No. 10-2174 17

It also is worth noting that in Zeigler Coal the surety sought to 4

intervene approximately two weeks after Old Ben Coal was

decided, not over a year later, as is the case here. Too, in Zeigler

Coal the surety was not, as in this case, the proponent of the

proceedings. In other words, the particular problem presented

here, that for approximately five years there was no real party

in interest prosecuting the modification proceeding at issue,

was not present in Zeigler Coal.

or a surety, that would be prejudiced by an award of

black lung benefits is entitled to intervene in the administrative proceeding with the rights of a party.” Id. at 420

(citing 20 C.F.R. § 725.360(a)(4), (d)). In light of these

unambiguous pronouncements in Old Ben Coal, even

assuming for the sake of argument that the notice given

to Travelers in 2005 by the DOL was insufficient to

alert Travelers to the need to intervene in the modification proceeding at issue in this case, it is difficult to

understand why Traveler waited until over a year after

the Court handed down the Old Ben Coal decision to

seek intervention in the modification proceeding.4

What appears most plausible to the Court from the

record of this case (and what Travelers more or less

has owned up to both in its written submissions to

the Court and at oral argument in this appeal) is

that Travelers made a tactical decision to stay out of

the modification proceeding at issue here for as long as

it could do so. Finally, Travelers sought leave to intervene in the modification proceeding only when

the surety concluded that it could no longer sit on the

sidelines without risking a finding that the claim for
18 No. 10-2174

modification had been abandoned. This behavior, though

not commendable, may be legitimate, provided that the

delay by Travelers in seeking to intervene in this matter

did not prejudice Mr. and Mrs. Crowe.

In evaluating the timeliness of the request by Travelers

to intervene in the modification proceeding, the Court

recognizes that “the mere lapse of time by itself does not

make an application untimely,” and instead the Court

“must weigh the lapse of time in the light of all the circumstances of the case.” 7C Charles Alan Wright, Arthur

R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1916 (3d ed. 1998 & Supp. 2010). In particular, the

Court “must consider whether the applicant was in a

position to seek intervention at an earlier stage in the

case”; thus, “[w]hen the applicant appears to have been

aware of the litigation but has delayed unduly seeking to

intervene, courts generally have been reluctant to allow

intervention.” Id. (collecting cases). “The most important

consideration” in determining if a request to intervene

is timely is whether “delay in moving for intervention . . .

prejudice[d] the existing parties to the case” and, “[i]f

prejudice is found, [intervention] will be denied as untimely.” Id.

Here there is little serious question that the

delay by Travelers in seeking leave to intervene in the

modification proceeding was prejudicial. For approximately three years, while the modification proceeding

was artificially, and improperly, kept alive by the ALJs

assigned to the matter, Mr. Crowe was obliged to defend
No. 10-2174 19

In this connection, it should be pointed out that during the 5

period of some three years when Travelers was on notice of

its interest in the modification proceeding, but refused to

intervene in the proceeding, counsel for the surety nonetheless

were permitted to file briefing in the proceeding.

his award of benefits against a phantom litigant.5

On similar facts, this Court has rejected intervention. See

Larson v. JPMorgan Chase & Co., 530 F.3d 578, 583-84

(7th Cir. 2008) (a failure by a pension fund to seek to

intervene in a class action until over three years after

it knew or should have known of its interest in the proceedings, and after a settlement of the class-wide claims

had been reached and judgment on the settlement

had been entered, was grounds to deny intervention);

Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 949-50

(7th Cir. 2000) (an Indian tribe’s delay in seeking intervention in a lawsuit until more than five years after

the tribe’s members knew or had reason to know that

their interests might be adversely affected by the outcome of the suit was grounds to deny intervention, particularly where the proposed intervention was a belated

device to block a settlement of the lawsuit). Travelers, as

noted, made a tactical decision not to intervene in

this matter until the eleventh hour (at least), and now

Travelers will have to live with the consequences of

that decision. The BRB’s order affirming modification

of the award of benefits to Mr. Crowe will be reversed,

and this case will be remanded with instructions for

the reinstatement of the award.
20 No. 10-2174

IV. Conclusion

It was error for the BRB to refuse to dismiss the modification proceeding and to permit Travelers to intervene

in the proceeding. Accordingly, the decision of the BRB

is REVERSED, and this matter is REMANDED to the BRB

for remand to the ALJ with instructions to reinstate the

ALJ’s 2001 award of black lung benefits to Mr. Crowe.

HAMILTON, Circuit Judge. I join Judge Murphy’s opinion for the court, reversing for reinstatement of the

award of benefits in favor of the late Mr. Crowe. I write

separately to address a second basis for reversal that is

at least as powerful as that explained by Judge Murphy.

The BRB and the ALJ found that it was consistent with

“justice under the Act” to allow this modification proceeding to go forward. That determination was based on

a mistake. The mistake led the ALJ and the BRB to create

incentives to encourage employers to refuse to comply

with final payment orders, as required by law. Those

incentives will undermine rather than “render justice

under the Act.”

In June 2001, after a decade of litigation in administrative and judicial proceedings, an ALJ found that

Harold Crowe was entitled to monthly benefits under the
No. 10-2174 21

Black Lung Act, as well as $168,000 in back benefits. The

ALJ ordered Zeigler Coal to pay those benefits. Zeigler

Coal did not appeal any further. It also did not pay as

ordered. Instead, it decided to try to start all over again

by filing a petition to modify the award. That tactic,

indulged by the ALJ and ultimately even encouraged

by the BRB, essentially erased the parties’ efforts for the

preceding decade. In my view, the ALJ and the BRB acted

arbitrarily and capriciously by considering a petition

to modify a final payment order that the petitioner

was willfully and lawlessly disobeying.

Let me be clear: my objection is not to Zeigler Coal’s

decision to seek modification. As Judge Ripple explains

in detail in his dissent, the black lung benefits program prizes accuracy over finality to an unusual degree,

incorporating the Longshore and Harbor Workers’ Compensation Act’s broad modification authority set forth in

33 U.S.C. § 922. See 30 U.S.C. § 932; 20 C.F.R. § 725.310.

If Zeigler Coal believed the June 2001 award of benefits

was wrong, it was entitled to seek modification. But

Zeigler Coal was not legally entitled simply to ignore

the final order of payment.

When the final order was issued in June 2001 and was

not appealed or stayed, benefits were due to Mr. Crowe.

The relevant regulation provides, not surprisingly, that

“benefits under the Act shall be paid when they

become due.” 20 C.F.R. § 725.502(a)(1). Accord, 33 U.S.C.

§§ 918, 921(a) (during judicial review, payment of

amounts required by an award shall not be stayed

pending final decision, unless ordered by the court on
22 No. 10-2174

showing of threat of irreparable injury). The regulation

then explains: “Benefits shall be considered due after the

issuance of an effective order requiring the payment of

benefits by a district director, administrative law judge,

Benefits Review Board, or court, notwithstanding the

pendency of a motion for reconsideration before an

administrative law judge or an appeal to the Board or

court, except that benefits shall not be considered due

where the payment of such benefits has been stayed by

the Benefits Review Board or appropriate court.” 20

C.F.R. § 725.502(a)(1). The regulation goes on to state:

“An effective order shall remain in effect unless it is

vacated by an administrative law judge on reconsideration, or, upon review under section 21 of the LHWCA,

by the Benefits Review Board or an appropriate court, or

is superseded by an effective order issued pursuant

to § 725.310 [the modification authority].” Id. The

pendency of a modification petition does not affect the

finality of an award. Hansen v. Director, OWCP, 984 F.2d

364, 367 (10th Cir. 1993) (holding for purposes of

appellate jurisdiction that “pendency of a motion to

modify under § 922 does not destroy the finality of the

Board’s order”); see also National Mines Corp. v. Carroll,

64 F.3d 135, 141 (3d Cir. 1995) (noting for purposes of

statute of limitations that, “as a general rule, the mere

existence of modification proceedings does not affect

the finality of an existing award of compensation”).

Consistent with these provisions of law, the ALJ, the

BRB, and Judge Ripple all recognize that Zeigler Coal was

violating the law by refusing to pay the final, unappealed,

and unstayed payment order. See App. 13 (ALJ decision
No. 10-2174 23

stating: “There is no question that [employer] should

have commenced the payment of benefits to the claimant

when it chose to pursue modification rather than appeal

the decision on remand,” and describing this as “disregard

for the law”); App. 5-6 (BRB decision affirming and

finding no basis to disagree on this issue); post at 54

(“there appears to be no significant dispute that the

surety’s failure to pay benefits while the modification

proceeding continued was a violation of law”).

Yet the ALJ and the BRB chose to indulge this tactic, and

even found it consistent with “justice under the Act.” The

ALJ explained his reasoning as follows: “However, this

disregard for the law worked to the detriment of other

coal mining companies rather than the claimant since

benefits were paid the claimant by the Department of

Labor from the Black Lung Disability Trust Fund

which is funded through a tax on the severance of

coal.” App. 13-14. The ALJ went on to explain that the

interest in accuracy over finality and the weight of the

(by then liquidated) employer’s new evidence showed

that modification would serve “justice under the Act.”

Id. at 14. The BRB endorsed this reasoning.

That explanation by the ALJ and BRB was built upon

an error that was both factual and legal—a misunderstanding about the consequence of Zeigler Coal’s tactic—and it invites employers and their sureties to

resist payment indefinitely, until the claimant dies and

his heirs give up. If Zeigler Coal did not pay monthly

benefits going forward, the trust fund (paid for by other

coal companies) would pay, and in fact did pay,
24 No. 10-2174

Mr. Crowe. But the ALJ’s and BRB’s explanation

simply overlooked Zeigler Coal’s obligation to pay back

benefits under the final payment order. Zeigler Coal

owed Mr. Crowe more than $168,000 under the final

payment order. The fund would not pay back benefits. 26

U.S.C. § 9501(d)(1)(A) (funds from Black Lung Trust

fund may be expended for benefits only after a determination of entitlement, not from the original time of

disability). Thus the effect of Zeigler Coal’s decision to

disobey the final payment order was to deny Mr. Crowe

the $168,000 in back benefits to which he had been found

entitled. The ALJ and the BRB overlooked this central

reality when they erroneously found that Zeigler Coal’s

disregard of the law hurt only other coal companies

rather than Mr. Crowe and his family. When an administrative agency has made such an error, its order may not

stand. E.g., SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“an

order may not stand if the agency has misconceived

the law”); accord, Shelton v. Old Ben Coal Co., 933 F.2d

504, 508 (7th Cir. 1991) (reversing denial of black lung

benefits where BRB applied wrong legal standard).

Zeigler Coal’s decision not to obey the final payment

order was lawless but easy to understand. The law provides that a modification order “shall not affect any

compensation previously paid,” with exceptions not

relevant here. 33 U.S.C. § 922. Zeigler Coal knew that if

it complied with the final payment order, as it was required to do, and later won a modification, it could not

recover the money it had paid to Mr. Crowe under the

final payment order.
No. 10-2174 25

What to do? The answer for Zeigler Coal was obvious,

at least if the BRB was willing to indulge such lawless

behavior. By refusing to pay under the final payment

order while pursuing a modification, Zeigler Coal

delayed payment of back benefits indefinitely, shifted the

cost of current monthly benefits to the trust fund, denied

Mr. Crowe the back benefits he had been awarded, and

forced him to litigate for years more.

If the BRB is willing to consider a modification petition by an employer that is refusing to comply with the

BRB’s own final payment order, employers in many

cases will have a strong financial incentive to pursue

that same lawless course. The BRB’s tolerance encourages employers to try to delay initial benefit determinations as long as possible, while making minimal

efforts to defend the cases on the merits. Then, if they

lose with a sparse record that would never support a

reversal on judicial review, they can decline to appeal,

refuse to pay, and seek modification. That course

renders all of the claimants’ and the black lung benefits

system’s efforts up to that point a nullity.

For the employer, it’s a no-lose proposition, but it

imposes costs on everybody else involved in the program. (1) The intended beneficiaries and their families

are denied the full benefits they are entitled to receive,

and must keep litigating indefinitely. (2) The trust fund

paid for by the whole industry picks up the tab for

ongoing monthly benefits. (3) The BRB and its administrative law judges must entertain routine petitions to

modify by scofflaw employers. If modification is granted,
26 No. 10-2174

As Judge Ripple explains, the principle that a modification 1

should “render justice under the act” stems from the Supreme

Court’s decision under the LHWCA in O’Keeffe v. Aerojet-General

Shipyards, Inc., 404 U.S. 254, 255-56 (1971).

the employer is way ahead. If modification is eventually

denied, the employer is no worse off than it was when

it first lost. The BRB’s tolerance of this tactic will impose

even heavier burdens and longer delays on a program

already known for decades-long litigation. An administrative practice that creates such incentives is arbitrary

and capricious, and cannot serve the interests of “justice

under the Act.”1

In response to this reasoning, Travelers makes three

principal points, but they are not persuasive. First, it tries

to characterize Zeigler Coal’s actions as a refusal to pay

only “interim” benefits. But there was nothing “interim”

about the benefits awarded under the final payment

order in 2001. Second, Travelers points out that the law

provides a mechanism for enforcing payment orders, in

33 U.S.C. § 921(d), which allows the government or a

beneficiary to apply for enforcement of the award in a

district court. That’s true, and our record does not

indicate why Mr. Crowe or the government did not seek

enforcement of this final payment award sooner. But

the existence of one costly enforcement mechanism—

federal litigation—does not prevent the BRB from using

other sensible policies to insist that its orders be obeyed.

Third, Travelers argues that modification is intended

to be readily available to all parties and “not subject
No. 10-2174 27

to arbitrary limitations.” Appellee’s Br. 23. With respect,

nothing in the approach I would take on this issue

is inconsistent with that general point. The rule I would

apply—refuse to entertain a petition to modify when

the petitioner is disobeying a final payment order—

is comparable to similar rules that courts often apply

to parties who disobey their orders.

For example, parties who are subject to an erroneous

and even an unconstitutional injunction must obey that

injunction while they seek to have it reversed or modified. The fact that the injunction was erroneous or unconstitutional is not a defense against contempt sanctions. E.g.,

Walker v. City of Birmingham, 388 U.S. 307 (1967) (affirming

criminal contempt convictions for violations of temporary

injunction that blocked civil rights demonstration). Similarly, a convicted prisoner who escapes from prison and

becomes a fugitive can expect that his pending appeal of

his conviction will be dismissed, regardless of the strength

of his arguments on the merits, and even if he might be

innocent. E.g., Ortega-Rodriguez v. United States, 507 U.S.

234, 239-42 (1993) (collecting cases). A party to a civil case

who willfully disobeys court orders of any kind, such as

those enforcing discovery obligations, can expect dismissal

or a default judgment as a sanction, no matter the strength

of her claims or defenses. In these situations, courts

recognize that if they tolerate willful disobedience of

their orders, and if they leave their doors and processes

open to those who would flout their authority, their

orders will not be obeyed. Their duties to other parties

and their own institutional obligations require such

strong sanctions, given sufficient provocation.
28 No. 10-2174

Analogous principles apply here, notwithstanding the

different balance between finality and accuracy that has

been struck under the Black Lung Benefits Act. The

issue here is not the accuracy or finality of BRB decisions,

but the integrity of those decisions. By refusing to

consider a petition to modify by a party who is willfully disobeying a final payment order, the BRB would

promote justice under the Act. Employers would have

a strong incentive to litigate original claims vigorously,

if they want to contest them, and a strong incentive to

comply with final payment orders. In this case, however, the BRB tolerated such willful disobedience of the

final payment order. The result is to encourage such

disobedience of the BRB’s own final payment orders, to

reward even more prolonged and wasteful litigation,

and to put more burdens on beneficiaries and their families, on other employers who honor their obligations

(and may now feel they have been taken for fools by

doing so), and on the entire Black Lung Benefit Act administrative apparatus.

The best argument against my view is that explained

so well by Judge Ripple in his dissent: the ALJ and

BRB have the authority to refuse to consider a petition

for modification that is an abuse of the process, see

Old Ben Coal Co. v. Director, OWCP (Hilliard), 292 F.3d

533, 547 (7th Cir. 2002) (acknowledging possibility but

holding that agency abused discretion by refusing to

consider petition to modify filed after claimant died),

but their task is to balance many competing values and

policies in making such decisions; courts should leave

that balancing to the sound discretion of the ALJ and the
No. 10-2174 29

BRB. Judge Ripple sees no abuse of that discretion here,

especially when viewed in hindsight, when we know

that after nearly another decade of litigation, the ALJ

changed his mind about Mr. Crowe’s eligibility for benefits.

The general point about the roles of the ALJ and BRB

is correct, and in other contexts they are entitled to substantial leeway in exercising that discretion. Accord, Hilliard, 292 F.3d at 547; id. at 554-55 (Wood, J., dissenting) (arguing for deference to agency’s decision

to deny modification to avoid piecemeal litigation that

would exhaust claimants’ resources). I respectfully disagree, however, as applied to the problems posed by

this lawless, willful refusal to comply with a final

payment order. First, the ALJ and BRB justified their

decisions by erroneously overlooking the effect that the

employer’s tactic had on the claimant. More fundamental, the incentives created by the BRB’s approach

to this case are simply not consistent with the purposes

of the Black Lung Benefits Act. While the BRB may

exercise discretion in such matters, the employer’s tactic

of refusing to pay as ordered while also invoking

the modification remedy was so corrosive that it

required a much stronger response than the verbal tuttut administered by the ALJ. Far more meaningful than

those mere words was the decision to give the employer (now its surety) all the rewards it could hope

to achieve by this cynical and cold-blooded tactic. The

BRB has allowed its understandable desire for accuracy

to be twisted here into a tool to defeat the purpose of

the statute.
30 No. 10-2174

I also do not believe that the question should be approached from the perspective of what the ALJ and

BRB learned about the merits of the underlying issue

over the long course of the modification proceedings.

The relevant perspective is the time the scofflaw employer

files the petition for modification. That’s when the ALJ

must decide whether to entertain the proceeding at all,

before he or she knows what the new evidence might

show. By the same token, a court deciding whether to

punish parties who disobeyed a temporary injunction

does not wait until the ultimate merits of the injunction

are resolved, and an appellate court deciding whether

to dismiss an appeal by a fugitive-defendant does not

consider full briefing on the merits.

In the end, I do not know whether Mr. Crowe

suffered from black lung disease or not. ALJs and doctors

who are much better suited to answer that question have

disagreed over the past 20 years. What I do know is that

a final decision was made in 2001 and Mr. Crowe’s employer was ordered to pay benefits to him. The employer

unlawfully refused, and ever since then, the agency

has been indulging this refusal to comply with its own

order, thereby encouraging others to do the same. That

approach simply is not consistent with “justice under

the Act.” For this reason, as well as that explained by

Judge Murphy, I concur in the remand of this case.
No. 10-2174 31

See Jessee v. Dir., OWCP, 5 F.3d 723, 725 (4th Cir. 1993) (“[T]he 1

‘principle of finality’ just does not apply to Longshore Act and

black lung claims as it does in ordinary lawsuits.” (citing Banks

v. Chicago Grain Trimmers Ass’n, 390 U.S. 459, 461-65 (1968))).

Old Ben Coal Co. v. Dir., OWCP (Hilliard), 292 F.3d 533, 535 2

(7th Cir. 2002).

RIPPLE, Circuit Judge, dissenting. The Black Lung

Benefits Act, 30 U.S.C. §§ 901-45, and the regulatory

scheme that accompanies it, create a complicated process

for adjudicating benefits claims by coal industry employees who become disabled as a result of their employment. As we have noted on numerous occasions,

in creating this system, Congress deliberately prized

accuracy over finality. The statute accomplishes this

task by allowing agency reexamination of claims to a

degree far exceeding the norm in our judicial system.1

In the case before us, it took the agency and the courts

more than twenty years to assess the facts of Harold

Crowe’s claims and to reach the ultimate conclusion

that he was not entitled to benefits under the Act. In

those years, the agency has taken various positions on the

factual and legal issues at stake, and the party opposing

the benefits claim has changed from the employer coal

company, to an unknown entity litigating in the name

of the now-bankrupt coal company, to a surety-holder,

which, we learned at oral argument, claims in other

litigation now pending not to hold the surety in this case.

Given this “long and tortuous history,” I understand

2

my colleagues’ aversion to a system that allowed the
32 No. 10-2174

agency and the defending party to pursue the course each

has and a result that denies benefits to Harold Crowe’s

widow and children. I nevertheless must conclude that

the statute, the regulations and our precedent allow

such a course. Consequently, I respectfully must disagree

with the court’s conclusion that the agency was required

to dismiss the modification petition. Because I further

conclude that Mrs. Crowe’s additional arguments fail,

I would deny the petition.

I

The present case implicates a relatively unique and,

to a significant degree, counter-intuitive modification

authority of administrative authorities responsible for

the implementation of the black lung benefits program.

That authority is best understood in the context of the

overall regulatory scheme. I therefore preface my analysis

of this case with a sketch of the overall administrative structure.

A. The Black Lung Benefits Act and Amendments

In 1969, responding to a single mine explosion that

killed seventy-eight miners in Farmington, West Virginia,

and unrelated mine accidents in the following year that

took the lives of an additional 170 miners, Congress

enacted the first Federal Coal Mine Health and Safety

Act (“FCMHSA”), Pub. L. No. 91-173, 83 Stat. 742

(1969) (codified as amended at 30 U.S.C. §§ 801-900).

The FCMHSA aimed to “protect the health and safety
No. 10-2174 33

of coal miners, and to combat the steady toll of life, limb,

and lung, which terrorizes so many unfortunate families.” H. Rep. No. 91-563 at 2 (1969), reprinted in 1969

U.S.C.C.A.N. 2503, 2503. In addition to a series of

reforms in the previous federal mine safety program, the

FCMHSA created the Nation’s first federal entitlement

program for miners. The legislators believed the program

to be a “satisfactory means of compensating miners

who were incapacitated by respirable diseases, as well

as the surviving widows and children of miners who

had died from the dread black lung.” S. Rep. No. 92-743

at 3 (1972), reprinted in 1972 U.S.C.C.A.N. 2305, 2307

(describing the 1969 FCMHSA). The FCMHSA vested

responsibility for administering the program in the

Social Security Administration (“SSA”); benefits were

paid from SSA’s general funds. Less than three years

after the Act’s passage, claims for benefits were more

than three times the anticipated levels. Even so, the rate

of denials by the SSA for benefits under that first act

was more than fifty percent nationwide. Id.

In response, Congress modified and expanded substantially the program in the Black Lung Benefits Act of

1972 (“the Act”), Pub. L. No. 92-303, 86 Stat. 150 (codified

as amended at 30 U.S.C. §§ 901-45). In this “remedial law,”

Congress attempted to ensure that “the cases which

should be compensated[] will be compensated. In the

absence of definitive medical conclusions there is a clear

need to resolve doubts in favor of the disabled miner or

his survivors.” S. Rep. No. 92-743 at 11, 1972 U.S.C.C.A.N.

at 2315.
34 No. 10-2174

The 1972 Act moved the transition from SSA to the Depart- 3

ment of Labor from December 31, 1972, to December 31, 1973.

Pub. L. No. 92-303, § 5(2), 86 Stat. at 155. Much of the SSA’s

remaining authority with respect to the pre-1973 claims eventually was transferred to the Department of Labor in 1997. See

Black Lung Consolidation of Administrative Responsibility

Act, Pub. L. No. 107-275, 116 Stat. 1925 (2002) (codified as

amended at 30 U.S.C. §§ 921-24).

“The term ‘pneumoconiosis’ means a chronic dust disease 4

of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30

U.S.C. § 902(b) (addition by the Black Lung Benefits Reform

Act of 1977, see 20 C.F.R. § 725.1(f)).

In the 1972 Act, Congress gave specific direction to

both the SSA, which maintained its jurisdiction over pre1974 claims, and to the Department of Labor, which 3

handled new claims filed in 1974 and, later, the administrative responsibilities for the expansion of the federal

entitlement program. These steps were taken in part

because of the perception that the earlier program had

failed to compensate in appropriate cases. The 1972 Act

broadened coverage by requiring the agencies to consider certain types of evidence in making benefits determinations, including lay testimony; it also prohibited the

agencies from relying on negative x-rays as the exclusive evidence to deny a claim. See 30 U.S.C. § 923(b).

It further expanded the definition of total disability due

to pneumoconiosis to reach more miners and broadened 4

the presumptions favoring the miner. See id. § 902(f).

The 1977 amendments to the 1972 Act further

liberalized the standards for establishing eligibility by
No. 10-2174 35

See John S. Lopatto III, The Federal Black Lung Program: A 1983 5

Primer, 85 W. Va. L. Rev. 677, 678 & nn.10-11 (1983).

expanding the definition of miners, extending additional

presumptions in favor of claimants and creating the Black

Lung Disability Trust Fund. See Black Lung Benefits

Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95 (1978)

(codified as amended in scattered sections of 26 U.S.C.,

29 U.S.C. and 30 U.S.C.). In addition, the Act required

the Department of Labor to reexamine pending and

already denied claims at the request of the claimant under

standards at least as generous as those in effect in 1973.

Id. §§ 2(c), 15. Even as the substantive grounds and

the presumptions for entitlement expanded, the Act

continued to place the burden on the miner to prove

the existence of pneumoconiosis, and the legislative

history made apparent that “a mere showing of a respiratory or pulmonary impairment will not be sufficient

to establish a claim for benefits.” S. Rep. No. 92-743 at

13, 1972 U.S.C.C.A.N. at 2317. After this series of increasingly generous amendments to the original entitlement

program, and largely in response to mounting deficits

in the Trust Fund, the Act was amended in 1981 to

create more restrictive eligibility requirements. Specifi- 5

cally, three out of the five presumptions in favor of claimants were eliminated; rules binding the agency to accept certain positive x-ray diagnoses of pneumoconiosis

were eliminated. See Black Lung Benefits Amendments

of 1981, Pub. L. No. 97-119, Title II, 95 Stat. 1635, 1643

(1981) (codified as amended in scattered sections of 30

U.S.C.); Newman v. Dir., OWCP, 745 F.2d 1162, 1164 n.2

(8th Cir. 1984).
36 No. 10-2174

For a history of the evolution of this provision to permit 6

modification in progressively more circumstances, see Banks v.

Chicago Grain Trimmers Ass’n, 390 U.S. 459, 461-64 (1968).

In addition to the Act’s substantive provisions, it

also provided for distinct administrative structures and

procedural rights for claimants. Beginning with the

original 1969 Act, the program incorporated by reference

many of the adjudication procedures under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.

§§ 901-50 (“the Longshore Act”), also administered by

the Department of Labor. Those procedures include the

right to a trial under the Administrative Procedures

Act and to both administrative and judicial appeals. See

33 U.S.C. §§ 919(d), 921; 5 U.S.C. § 554. In addition, and

particularly relevant to the case before us, since 1927, the

Longshore Act has included a provision permitting

modification of a final decision on benefits entitlement.

See 33 U.S.C. § 922. By the time the procedures of the

Longshore Act had been incorporated into the black

lung program, the modification provision allowed any

party, or the district director on his own initiative, “at

any time prior to one year after the date of the last payment of compensation, whether or not a compensation

order has been issued, or at any time prior to one

year after the rejection of a claim,” to seek review of

“a compensation case in accordance with the procedure

prescribed (for original claims),” for the purpose of modifying the order. Id. The grounds for modification are 6

“a change in conditions or . . . a mistake in a determination of fact.” Id.
No. 10-2174 37

Earlier regulations were promulgated, of course, by the 7

Secretary of Health, Education, and Welfare, under the authority to adjudicate claims from the initial application period. See

Pittson Coal Group v. Sebben, 488 U.S. 105, 108-11 (1988) (discussing generally the historical series of regulations by the

two departments and their relationships to one another).

The legislative history for the 1969 FCMHSA offers

nothing specifically to explain the choice to incorporate

the Longshore Act’s procedures, much less the modification authority. See H.R. Rep. No. 91-161 (1969) (Conf.

Rep.), reprinted in 1969 U.S.C.C.A.N. 2578, 2606 (stating,

without elaboration, that “the applicable provisions of

the [Longshore] act of March 4, 1927, as amended, shall

be applicable” to claims filed on or after January 1, 1973).

The foregoing account demonstrates that there have

been significant changes to the substance of the Act,

many of which expanded the Act’s scope of coverage. A

constant, however, has been the Act’s integration of the

Longshore Act’s procedures to the long-term black lung

benefits claims, including the modification authority.

B. The Regulations

Pursuant to the Act, the Secretary of Labor developed 7

an extensive regulatory scheme. In brief, in its current

form, it requires claims to be presented first to a district

director in the Office of Workers’ Compensation Programs (“OWCP”) of the Department of Labor, who

will issue an order regarding entitlement to benefits. The

claimant or the operator (or its successor) may petition
38 No. 10-2174

The regulations were amended substantively in December 8

2000 to set limits on the quantity and quality of evidence that

can be submitted in a modification proceeding. However,

those limitations were not applicable to claims pending on

January 19, 2001, as Mr. Crowe’s was. See 65 Fed. Reg. 79920,

80057, 80069 (Dec. 20, 2000); 20 C.F.R. § 725.2(c) (2010); Zeigler

Coal Co. v. OWCP, 490 F.3d 609, 615 n.5 (7th Cir. 2007) (noting

that which of the various rules governs a black lung claim

depends upon when the initial claim is filed). 

The statute provides that the modification authority rests 9

with the “deputy commissioner,” a position that is now occupied by the “district director” in the DOL. We have long

held that the regulations appropriately extend modification

authority to the ALJs that conduct hearings when the mistake

of fact alleged was committed by an ALJ. See Eifler v. OWCP,

926 F.2d 663, 665-66 (7th Cir. 1991).

for a trial before an ALJ, review by the Benefits Review

Board (“BRB” or “Board”) and review in an appropriate

Court of Appeals. See 20 C.F.R. §§ 725.400-83 (Subparts E

and F).

With respect to modification, the regulations in place

in 2000, at the time of the modification petition in the

present case, added little beyond that specified in the

statute. See 20 C.F.R. § 425.310 (2000). In addition to

8

stating that the “modification proceeding[] shall be conducted in accordance with the provisions of this part as

appropriate,” the applicable regulations specifically

provide that “[a]dditional evidence may be submitted

by any party or requested by” the decisionmaker.9

Id. § 725.310(b) (2000).
No. 10-2174 39

C. Precedents Interpreting the Modification Authority

The Supreme Court has long understood the modification provision in the statute to convey broad authority.

In Banks v. Chicago Grain Trimmers Ass’n, 390 U.S. 459, 461-

64 (1968), a claimant filed a second petition for benefits,

alleging a completely different theory of liability and

different evidence in support of that theory. The court

of appeals had rejected the second petition, concluding

it was barred by res judicata. The Supreme Court, however, held that the second petition was an appropriate

request for modification within the authority granted

by the statute. Specifically, the Court acknowledged

that among the mistakes of fact the statute permitted

the agency to correct was a mistake of ultimate fact—i.e.,

the liability of the employer. It is significant that the

broad reading of the modification authority in the Longshore Act in Banks predates the decision of Congress

to incorporate its procedures into the first black lung

program, in the FCMHSA of 1969.

Several years later, in O’Keeffe v. Aerojet-General Shipyards,

Inc., 404 U.S. 254 (1971) (per curiam), the Court again

interpreted broadly the modification provision:

[O]n its face, the section permits a reopening

within one year “because of a mistake in a determination of fact.” There is no limitation to particular

factual errors, or to cases involving new evidence

or changed circumstances. The [Longshore] Act at

one time did authorize reopening only on the

“ground of a change in conditions,” 44 Stat. 1437,

but was amended in 1934 expressly to “broaden
40 No. 10-2174

the grounds on which a deputy commissioner

can modify an award . . . when changed conditions

or a mistake in a determination of fact makes

such modification desirable in order to render

justice under the act.” S. Rep. No. 588, 73d Cong.,

2d Sess., 3-4 (1934); H.R. Rep. No. 1244, 73d Cong.,

2d Sess., 4 (1934). The plain import of this amendment was to vest [the agency] with broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative

evidence, or merely further reflection on the evidence initially submitted.

Id. at 255-56. The court of appeals in O’Keeffe had refused

modification where no new evidence had been presented,

concluding that “ ‘the statute simply does not confer

authority upon the Deputy Commissioner to receive

additional but cumulative evidence and change his

mind.’ ” Id. at 254-55 (quoting the Fifth Circuit’s opinion).

The Supreme Court’s reversal of that decision directed

that “not only could modification be used to challenge

the ultimate determination of liability, but modification also could take place without submission of ‘new’

evidence.” Old Ben Coal Co. v. Dir., OWCP (Hilliard), 292

F.3d 533, 540 (7th Cir. 2002) (internal citations omitted). O’Keeffe did, however, draw on legislative history

to require that modification “render justice under the

act,” 404 U.S. at 255, 256; that principle continues to

inform the discretionary determinations made by the

agency on modification.

Our own decisions have followed the Supreme Court’s

direction to interpret the modification provision to
No. 10-2174 41

reach broadly with respect to both substance and procedure. In Hilliard, we reviewed the agency’s denial of

an employer’s modification petition. In denying modification, the ALJ had noted that modification was discretionary and subject always to the limitation that it

render justice under the Act; specifically, the agency

believed that the need to render justice should be

“balance[d] . . . against the need for finality in decision

making.” 292 F.3d at 537 (quotation marks omitted). The

agency’s language made clear that it was displeased with

the employer’s tactics in the case before it:

“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.”

Id. at 537 (quoting the ALJ opinion). We reversed.

Drawing on the Supreme Court precedent and a

“wealth of circuit cases,” id. at 541, we focused on the

breadth of the provision and the conscious decision of

Congress to elevate accuracy over finality embodied in

the modification provision. We reviewed decisions

that overturned modified awards and concluded that,

although the preference for accuracy could be overcome in some situations by various considerations and
42 No. 10-2174

Indeed, we went so far as to say that, “[t]o the extent that 10

an ALJ determines that there are important reasons

grounded in the language and policy of the Act that overcome

the preference for accuracy, that determination should not

be disturbed.” Hilliard, 292 F.3d at 547.

specific interests related to finality could be among them,

the “concern for finality simply cannot be given the

same weight that it would be given in a regular civil

proceeding in a federal district court.” Id. We noted

that abuse of the adjudicatory system was one potential

basis for refusing modification, and further concluded

that “an ALJ would be entitled to determine that an

employer was employing the reopening mechanism in

an unreasonable effort to delay payment.” Id. at 547. In

finding that the ALJ in Hilliard had failed to ground

her decision in the policies of the statute, however, we

left the determination of the “universe of actions that

overcomes the preference for accuracy” within the

sound discretion of the agency, guided by the “justice

under the Act standard.” Id. (internal quotation marks

omitted). We specifically ruled that this standard 10

should not be confused with the more amorphous and

familiar “interests of justice” standard; the relevant

standard directly “cabins the discretion of the ALJ to

keep in mind the basic determination of Congress that

accuracy of determination is to be given great weight in all

determinations under the Act.” Id. (emphasis added).

We further noted that the statute provides a broad

timeline for requesting modification by specifying that
No. 10-2174 43

requests need only be filed within one year of a claim’s

rejection and including no limitation on subsequent

requests. We cited with approval cases from other

circuits that had concluded that the “rejection of a

claim” language in § 922 includes rejection of another

modification petition itself, thereby lengthening substantially the amount of time in which a claim could be

pending. Id. at 540-41 (citing cases from the Third and

Fourth Circuits).

II

Our review task is well-defined. On petition for

review of a decision of the Benefits Review Board in

proceedings under the Black Lung Benefits Act, 30 U.S.C.

§§ 910-45,

our task is to review the ALJ’s decision which the

Board affirmed. 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. We

affirm an ALJ’s factual findings if they are supported by relevant evidence that a rational mind

might accept as adequate to support a decision.

We do not reweigh the evidence, resolve inconsistencies in the record, make credibility determinations, or substitute our inferences for those

drawn below. Though we defer to the ALJ’s factual

determinations, we review questions of law

de novo.
44 No. 10-2174

Roberts & Schaefer Co. v. Dir., OWCP, 400 F.3d 992, 996

(7th Cir. 2005) (internal quotation marks and citations

omitted). “After this examination, we then review the

Board’s decision to determine whether the Board

adhered to its scope of review and whether it committed

any legal error.” Blakley v. Amax Coal Co., 54 F.3d 1313,

1318 (7th Cir. 1995).

Florence Crowe, widow of Harold Crowe, challenges

the decision of the ALJ, affirmed by the Benefits Review

Board, reversing an award of benefits to Mr. Crowe. She

raises three arguments in support of remand to the agency.

First, she contends that the action should have been

dismissed when the coal operator was dissolved and no

other party assumed responsibility for the modification

petition. Second, she claims that the ALJ erred in concluding that modification would serve justice under the

Act. Finally, she claims that an earlier decision of the

Benefits Review Board erroneously remanded the case

back to the ALJ and that we should review and reverse

that earlier decision. My colleagues premise their grant

of the petition on Mrs. Crowe’s first reason. Because

I find no merit in that argument, I shall discuss as well

her alternate arguments.

A. Requests for Dismissal

As the court recounts, Mr. Crowe requested that the

modification petition pending in his case be dismissed

when Horizon Natural Resources, the successor in

interest to Zeigler, Mr. Crowe’s former employer, was
No. 10-2174 45

At oral argument, it became apparent that Travelers is 11

contesting its status as the surety in other litigation. For ease

of reading, I continue to refer to it as the surety holder, as it has

not been determined to be otherwise so far as we have been

made aware.

dissolved in bankruptcy. Indeed, he moved to dismiss

when no party had intervened in 2005, and his motion

was denied by the Board. Later, when Travelers, the

holder of a surety from Zeigler, moved to intervene,

Mr. Crowe opposed the motion and has continued his

objection throughout the proceedings. Mrs. Crowe now

11

contends that it was error for the ALJ and the Board to

refuse dismissal of the modification petition when it

had no named proponent and to allow Travelers’s intervention in 2009. I consider those arguments in turn.

At the outset, it should be noted that, in the dissolution proceeding, the bankruptcy court entered an order

relevant to the present matter. That court directed that

all pending black lung claims against debtors (i.e., former

coal operators whose interests had passed to Horizon) 

shall not be dismissed but instead, allowed to

proceed to final adjudication with the applicable

debtors as parties. Finally adjudicated claims

that result in benefit awards will not be enforced

against the Debtors but rather will form the

basis for collection from any other responsible

parties therefore, including without limitation, the

Debtors[’] sureties under the [black lung statute].
46 No. 10-2174

Old Ben Coal Co. v. Dir., OWCP, 476 F.3d 418, 419 (7th

Cir. 2007) (involving the Horizon bankruptcy) (modifications in original) (quotation marks omitted). 

1. Dismissal at the Agency was not Required by

our Precedents

The panel majority’s decision faulting the agency for

failing to dismiss the action rests on two prior cases of

this court, which I believe merit detailed examination.

First, in Old Ben Coal Co. v. Director, OWCP (Melvin),

476 F.3d 418 (7th Cir. 2007), a miner had been awarded

benefits in a final order of the Board. A bankruptcy then

resulted in the dissolution of the employer, but the

insurer, who could continue to face liability, sought to

challenge the agency decision without becoming a party

to it. At the insurer’s behest, a petition for review was

filed in this court, but in the name of the then-dissolved

employer. We dismissed the action. Because neither the

insurer nor anyone else had “sought party status,” the

only entity seeking to invoke our jurisdiction was “the

ghost of” the dissolved employer. Id. at 420. A non-party

(including the surety bond holder) seeking to protect

some contingent interest could not “direct[] its lawyer

to represent a named party that [by virtue of its dissolution] was not a real party in interest.” Id. We issued our

decision in Melvin, which, as noted above, involved the

same bankruptcy, in January 2007.

Thereafter, in June 2007, we issued another decision

in Zeigler Coal Co. v. Director, OWCP (Griskell), 490 F.3d
No. 10-2174 47

609 (7th Cir. 2007), that also involved the same bankruptcy and same surety. We noted in Griskell that, in

February 2007, Travelers had moved to intervene while

that case was pending in our court. We allowed the

intervention, although we considered it untimely, noting

that Travelers “showed good cause to intervene because,

until our decision in [Melvin], [Travelers] had no reason

to believe that intervention was necessary to protect

[its] interest.” Id. at 610 n.1.

Both Melvin and Griskell were issued after Mr. Crowe’s

motion to dismiss before the agency and neither is

squarely on point because the issue of party status implicated Article III jurisdictional concerns before this court,

not the right to proceed before the agency. Nevertheless,

they are instructive. We permitted untimely intervention in Griskell in part because we had concluded that

the insurer, relying on the bankruptcy court’s order, had

no reason to believe intervention was necessary. Our ruling

suggests that, at least until Melvin was issued, an insurer

involved in this particular bankruptcy and under the

bankruptcy court’s order would have been reasonable in

its belief that it could litigate in the name of the

dissolved employer.

The panel majority’s opinion notes that Griskell did not

“amplif[y] or enlarge[] upon” what it identifies as

Melvin’s basic holding, that a dissolved entity “was not

a real party in interest to a proceeding under the

[Black Lung Benefits Act].” Maj. Op. at 16. Our holding in

Melvin, however, was premised explicitly on the fact

that the entity seeking to invoke the jurisdiction of this
48 No. 10-2174

court was a non-existent corporation. It was not that Old

Ben ceased to be a real party to a proceeding under the

Act—it had ceased to exist at all; as such, it had nothing

to lose or gain from the suit and lacked standing in our

court. Although our decision in Melvin noted that the

surety was entitled to intervene in the administrative

proceeding, we did not state that it would have been

required to do so; indeed, we also acknowledged that

it might have intervened in our court to protect its

claimed interests. Griskell’s significance is that it explicitly states that the failure to have intervened as a

party in interest prior to 2007 is not fatal.

When Mr. Crowe’s own case is placed against the

timeline of our precedents, the reasonableness of the

agency’s decision not to dismiss the action prior to the

formal intervention of Travelers is apparent. Although

Mr. Crowe sought dismissal before the ALJ and repeatedly objected before the Board to participation of

counsel on behalf of the dissolved employer, he did so

before Melvin and Griskell rejected the respective insurers’ course in this court. At the time both Melvin

and Griskell were decided, the Board had issued its

order affirming the ALJ’s evidentiary conclusion that

Mr. Crowe had not demonstrated an entitlement to benefits. However, the Board had remanded the case so that

the ALJ could determine whether modification served

justice under the Act. The opposing party, still litigating

in the name of the bankrupt employer pursuant to the

bankruptcy court’s order, sought rehearing en banc. The

Board did not deny that motion until August 2007,

shortly after Griskell was decided. The remand order
No. 10-2174 49

The panel majority opinion notes that the surety in Griskell 12

sought to intervene just weeks after Melvin was issued, and

Travelers first motion in this case was a year after the same

decision. But the cases were at very different stages of litigation at that time. Griskell was already on petition for review in

our court, and Melvin would have required dismissal absent

intervention, as a matter of jurisdiction. In the present case, as

we already have discussed, the matter was sitting awaiting

a decision on a motion for rehearing before the Board.

then placed the case back before the ALJ. At that point,

in early 2008, Travelers, the surety holder, filed its

first motion to intervene over Mr. Crowe’s renewed

objection; although that motion was denied, see Order 12

of ALJ at 2 n.5 (Jan. 30, 2009), the Board found that denial

to have been in error, see Order of BRB at 1-2 (Oct. 21,

2009), and permitted intervention in 2009.

In short, Travelers was not engaged in improper

conduct when it waited from the time of the Horizon

bankruptcy until 2009 to become a party to the case. The

course that the employer’s counsel chose was in

conformity with existing law and a court order prior to

Melvin and Griskell. When, in 2007, those cases made

clear that the appropriate way of proceeding was not to

continue the proceedings in the name of the employer,

but by formal substitution of the surety, Travelers took

its first opportunity to seek intervention upon remand

of the case. The proceedings continued essentially uninterrupted by the issue of who actually litigated the modification petition. The relevant question in the modification has always been substantive entitlement to benefits

based on medical evidence.
50 No. 10-2174

The panel majority supports its decision on an interpreta- 13

tion of the statute and regulations that it believes required

dismissal even without our guidance in Melvin and Griskell.

Specifically, the majority takes the position that the statute and

regulations require there to be a party in interest and direct the

ALJ to dismiss a case when it has been abandoned by the

proponent. The provisions the majority identifies, however,

are not applicable to the situation at hand. The statute requires

that “the application” for modification be made by a party in

interest, 33 U.S.C. § 922, and it was so made in this case, by

Zeigler, prior to its dissolution. Although, as the panel majority

notes, claims may be denied due to abandonment under the

regulations, the abandonment regulation cross-references

another section, detailing the reasons for which such a denial

would be appropriate; that cross-referenced section mentions

only actions by a claimant that result in abandonment, not by

an opponent of a claim. See 20 C.F.R. § 725.310(c) (referencing

§ 725.409).

In sum, the legal authorities did not require dismissal,

and the administrative record simply does not establish

the kind of misconduct or abandonment that would have

required the ALJ to dismiss the case in the reasonable

exercise of his discretion.13

2. The Agency Acted within its Discretion in Permitting Intervention

After rejecting Travelers’s argument that the timing of

its intervention was reasonable in light of the development of the law of our circuit, the panel majority notes

that Travelers’s “behavior, though not commendable,
No. 10-2174 51

may be legitimate, provided that the delay . . . did not

prejudice Mr. and Mrs. Crowe.” Maj. Op. at 18. As the

panel majority notes, there is no specific requirement in

the statute or the regulations requiring intervention to

occur within a specific time frame, but the court will

“suppose that the regulations contemplate that an

insurer . . . will seek intervention in a timely manner.” Id.

at 15. In determining whether intervention should be

permitted in this case, the panel majority cites authorities,

not specific to the agency context, describing the factors

that courts should consider in determining whether to

permit a delayed intervention. After noting that chief

among those factors is the prejudice suffered by the

opponent, the panel majority concludes that there was

substantial prejudice to the Crowes in this case and

reverses.

Respectfully, I cannot agree. Given the substantial

discretion the agency enjoys in the conduct of proceedings

under the Act, it is not our role to engage in essentially

de novo review of the intervention question. Nor do

I believe that “ ‘all of the circumstances of the case,’ ”

Maj. Op. at 18 (citing 7C Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 1916 (3d ed. 1998 & Supp. 2010)), demonstrate

that the intervention should have been denied. Although

the Crowes were required to continue participating

in the proceedings over a period of several years, the

majority identifies no specific prejudice to their case.

First, the majority acknowledges that briefing continued with counsel for the surety participating, albeit

in the name of the employer. See Maj. Op. at 19 n.5. Second,
52 No. 10-2174

the record in this case was complete by the time that

Horizon was dissolved; the ALJ did not permit the introduction of additional evidence, but adjudicated the

petition with the evidence originally submitted by

Zeigler. See Decision and Order of ALJ at 4-5 (July 1, 2005)

(declining to reopen the record for additional evidence).

Finally, in the period of time after Melvin and Griskell

demonstrated that intervention was appropriate, the

case was essentially stagnant before the agency for a

period of several months, awaiting a decision on

already filed motions. Once the final remand order was

issued, Travelers moved to intervene within a reasonable

time frame, and, again, the Crowes suffered no direct

prejudice in the interim.

The Board acted within the bounds of its discretion

when it permitted Travelers to intervene. Nothing in the

statute or case law required a different result. It was

understandable for the insurer to believe that it could

proceed in the former employer’s name until our

decisions in Melvin and Griskell. Further, given that no

specific prejudice resulted for the Crowes, it was within

the discretion of the ALJ to allow the case to continue

under the employer’s name and was further within

the discretion of the Board to permit the intervention

in 2009.

B. Justice Under the Act

Mrs. Crowe next contends that the ALJ erred in concluding that modification would serve justice under the

Act. Specifically, she avers that the employer behaved
No. 10-2174 53

Specifically, in a procedural order issued in 1994 and another 14

in 2001, the ALJ denied the employer’s requests to introduce

evidence. In both denials, the ALJ noted that the employer

previously had had ample time to submit evidence, but had

failed to do so.

improperly in refusing to pay benefits under the final

award. Further, she contends that the ALJ’s decision was

capricious because the ALJ already had concluded, at

earlier stages in the proceeding, that the employer had

failed to act with diligence.

14

As we have noted, the statute vests an ALJ with broad

discretion in modification proceedings. That discretion

is cabined by the requirement that modification must

serve justice under the Act. O’Keeffe, 404 U.S. at 255, 256.

As we also have noted, that principle is tied to the

Act’s preference for accuracy above finality in most

circumstances. Although an ALJ is entitled, in various

circumstances, to conclude that a party’s conduct is

such that a modification in its favor is improper, see

Hilliard, 292 F.3d at 547, Mrs. Crowe has not invited our

attention to any case in which we have required such

a conclusion.

It is important to remember the posture at which this

question arises in this case. The ALJ in the modification

proceedings had concluded that, on the merits and in

consideration of all the evidence before him, Mr. Crowe’s

claim to black lung benefits should fail. Mr. Crowe, and

now Mrs. Crowe, seek to employ the justice under the

Act standard to contend that, despite that finding,
54 No. 10-2174

Although we noted in Hilliard that an employer’s attempt 15

to abuse the adjudicatory process to delay payment would

justify denial of modification, 292 F.3d at 547, there is no

allegation that this was the employer’s course in this case.

Modification was not sought for delay—it was sought for a

redetermination of the merits with additional evidence. 

Mrs. Crowe should continue to receive benefits because

of the conduct of the employer. Certainly, the proceedings in this case are protracted and the matter

might well have been resolved much sooner had the

employer better defended the case at the outset. Moreover, there appears to be no significant dispute that the

surety’s failure to pay benefits while the modification

proceeding continued was in violation of law. See 20

C.F.R. § 725.502(a)(1). Nevertheless, the ALJ was in 15

the best position to determine whether modification

served justice under the Act. We already have said that,

“[t]o the extent that an ALJ determines that there are

important reasons grounded in the language and policy

of the Act that overcome the preference for accuracy,

that determination should not be disturbed.” Hilliard,

292 F.3d at 547. The same is true when the ALJ finds

that the preference for accuracy outweighs competing

considerations in a given case.

Here, the ALJ properly considered Mrs. Crowe’s arguments that justice under the Act would not be served

by denial of a modification that he already had concluded was warranted by the evidence. He acknowledged the unlawfulness of the employer’s conduct, but

found it did not work a manifest injustice to Mr. Crowe
No. 10-2174 55

On the matter of nonpayment, the ALJ wrote:

16

I do not believe that the employer’s delay in the payment of benefits to the claimant is a significant enough

factor to justify denying employer’s request for modification. It does not establish that modifying the

previous award of benefits would be a “manifest

injustice,” especially considering the “statutory preference for accuracy of benefits determination.” Old Ben

Coal Co. v. Director, OWCP [Hilliard], 292 F.3d 533, [546]

(7th Cir. 2002). In this regard, I note that I agree that

the employer’s newly developed medical evidence

unquestionably demonstrates that I made mistakes of

fact in finding the evidence was sufficient to prove the

miner has pneumoconiosis and is totally disabled by

the disease. 

Decision and Order of ALJ at 6 (Jan. 30, 2009) (parallel citation

omitted). 

On the matter of diligence, the ALJ conducted a brief review 17

of the parties’ litigation strategies throughout the decadeslong proceeding. In the ALJ’s view, the employer had been

justified in failing to put forward a vigorous defense in the

first instance, because the claimant’s evidence in the initial proceeding was “weak,” and the agency’s approval of that strategy

was evident in the claim’s denial. Decision and Order of ALJ

at 4 (Jan. 30, 2009). After the case was remanded by the

Seventh Circuit for reconsideration of “the medical evidence

(continued...)

because his benefits were paid by the Trust Fund during

the litigation. The ALJ considered the diligence of the 16

employer and the quality of evidence produced in the

modification proceeding. His opinion makes clear that,

17
56 No. 10-2174

(...continued) 17

under a different standard of proof,” id. at 4-5, the ALJ noted

that the employer sought to introduce further evidence; the

ALJ further noted that he had denied that request, “despite

the diligence of employer’s counsel to convince [him] otherwise.” Id. at 5. Finally, the ALJ credited the employer for

seeking modification rather than appealing the award of

benefits: “I find this to be a diligent decision, because an

appeal may have proved futile to the employer based on the

existing evidentiary record.” Id. Within the modification

proceeding, the ALJ found that the newly developed record

was “replete with evidence developed by the employer regarding the state of the claimant’s medical condition.” Id.

considered in whole, the employer’s conduct in

pursuing modification was not sufficiently problematic

that it should upset the “statutory preference for accuracy

of benefits determination.” Decision and Order of ALJ

at 6 (Jan. 30, 2009) (internal quotation marks omitted).

In sum, it was within the discretion of the ALJ to conclude that the interest in accuracy, which occupies a

unique place in black lung litigation, should not be outweighed by the employer’s—or the insurer’s—conduct

in this litigation.

C. Review of Earlier Board Decision

Finally, Mrs. Crowe asks us to review the Board’s

decision of August 24, 2004, in which it remanded an

ALJ’s previous award of benefits, concluding that the

ALJ made an error of law. In that decision, the Board
No. 10-2174 57

Matter of Xonics, Inc., 813 F.2d 127, 130-31 (7th Cir. 1987) 18

(“Adverse decisions on interlocutory matters may be saved

up to be appealed at the end of the case. . . . We have an appeal

from the only ‘final’ decision, and in such an appeal all questions are open.”); 15A Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice & Procedure § 3905.1

(“The prohibition against immediate appeal of most pretrial

and trial orders established by the final judgment rule is

offset by the rule that once appeal is taken from a truly final

judgment that ends the litigation, earlier rulings generally can

be reviewed.”).

determined that the ALJ had failed to provide a medical

reason for crediting the testimony of the single treating

physician who diagnosed pneumoconiosis over the employer’s physicians who, upon reviewing Mr. Crowe’s

medical records, determined that pneumoconiosis could

not be diagnosed. The parties have submitted various

arguments about the reviewability of this decision, a

remand order that has twice been succeeded by additional orders of the Board on the merits.

As we noted at oral argument, it is self-evident that

our jurisdiction extends to questions addressed in interlocutory orders of the relevant agency or court.18

Therefore, the difficulty for Mrs. Crowe on this issue

is not, as Travelers contends, that we cannot reach the

prior Board decision because it is not a final order.

Rather, the difficulty is that the Board’s legal determination did not control the ALJ’s conclusion on remand.

The remand simply provided the ALJ an oppor-
58 No. 10-2174

The complete reexamination of the evidence was within 19

the scope of the remand order, which vacated the ALJ’s

“assessment of the evidence” and “instruct[ed] him on

remand to consider the employer’s modification request in

accordance with the standard set forth in Hilliard.” Decision

and Order of Board at 6 (Aug. 24, 2004). In the Board’s view,

Hilliard required the agency to “give great weight to accuracy.”

Id. at 5.

tunity to reexamine the evidence. In doing so, the ALJ 19

concluded that the prior award was erroneous in its

determination that the evidence supported a diagnosis

of pneumoconiosis. Although noting the basis for

the Board’s remand, the ALJ’s focus was instead on a

comprehensive reexamination of the record.

In short, we need not decide whether the Board misstated our precedents when it remanded so that the

ALJ could provide a medical reason for preferring the

treating physician’s diagnosis. Any such error would be

harmless in the present case because, in the remanded

proceedings, the ALJ’s total reevaluation of the claim

led to the conclusion that the record did not support

Mr. Crowe. That determination was based not on the

Board’s medical reason standard, but on a complete

review of the medical evidence from top to bottom.

Consequently, I must conclude that the ALJ and

the Board acted within their discretion in denying

Mr. Crowe’s motion to dismiss and in permitting

delayed intervention by Travelers. Further, given the

Act’s strong preference for accuracy in benefits deter-
No. 10-2174 59

minations, the ALJ did not abuse his discretion in determining that justice under the Act was served by the

modification. Finally, although we may review interlocutory orders of the Board, any legal error in its 2004

ruling proved inconsequential; the ALJ’s opinion completely reevaluated the evidence and made clear that he

believed the record did not support Mr. Crowe’s

claims. Accordingly, I would deny the petition. 

6-1-11