Crowe Ex Rel. Crowe v. Zeigler Coal Co.

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-2174

F LORENCE (C AROLYN ) C ROWE, on behalf of
H AROLD D. C ROWE,
Petitioner,
v.

Z EIGLER C OAL C OMPANY, et al.,
Respondents.

Petition for Review of
an Order of the Benefits Review Board.
No. 09-BLA-0429

A RGUED JANUARY 20, 2011—D ECIDED JUNE 1, 2011

Before R IPPLE and H AMILTON, Circuit Judges, and
M URPHY, District Judge. Œ
M URPHY, District Judge.

Œ
The Honorable G. Patrick Murphy of the Southern District
of Illinois, sitting by designation.
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 reinstate-
ment 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) (de-
scribing a twenty-four-year-old black lung case as “typi-
cally protracted”). In 1981, shortly after retiring from
his job with Zeigler, Mr. Crowe filed a claim for bene-
fits 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 treat-
ment 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 respira-
tory 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 assis-
tance 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 sig-
nificant 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 devel-
opment 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 pro-
ceedings since 2002, had been liquidated. In Decem-
ber 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 modifica-
tion 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 pro-
ceeding 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 modifica-
tion, 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 repre-
senting 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. How-
ever, 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 pro-
ceeding, 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 bene-
fits. 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 dili-
gence 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 inter-
vene to protect its interest. The BRB also affirmed
ALJ Mosser’s decision to grant modification and to termi-
nate 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 sub-
stituted 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). Al-
though 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 as-
serted grounds for reversal.
The BLBA provides that any “party in interest . . .
including an employer” may request modification of an
12 No. 10-2174

award of benefits under the statute. 33 U.S.C. § 922.1 Also,
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 in-
surance 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 Hori-
zon’s predecessors in interest, Old Ben Coal Company

1
The statute governing modification of awards of black lung
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).
No. 10-2174 13

(“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 limita-
tion on standing).2

2
The Court recognizes that standing in administrative pro-
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 adjudi-
cate 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...)
14 No. 10-2174

Equally importantly, in Old Ben Coal the Court specifi-
cally 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 succes-
sors 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 predeces-
sors in interest or the DOL. See id. at 419-20.3

2
(...continued)
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).
3
This specific portion of the Court’s decision in Old Ben Coal
therefore defeats any claim by Travelers that, after Zeigler was
liquidated in bankruptcy, Zeigler nevertheless remained a viable
(continued...)
No. 10-2174 15

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 modifica-
tion 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 modifica-
tion proceeding, to be made a party to the proceeding.
See 20 C.F.R. § 725.360(a)(4), (d). Although the regula-
tions 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 inter-
vention 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,

3
(...continued)
party to the modification proceeding at issue in this case by
virtue of the bankruptcy court’s order liquidating Zeigler.
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 pro-
ceeding 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 exis-
tence 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

or a surety, that would be prejudiced by an award of
black lung benefits is entitled to intervene in the adminis-
trative 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 modifica-
tion 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 inter-
vene 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

4
It also is worth noting that in Zeigler Coal the surety sought to
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.
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 cir-
cumstances of the case.” 7C Charles Alan Wright, Arthur
R. Miller & Mary Kay Kane, Federal Practice and Proce-
dure § 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 un-
timely.” Id.
Here there is little serious question that the
delay by Travelers in seeking leave to intervene in the
modification proceeding was prejudicial. For approxi-
mately 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

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 pro-
ceedings, 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 inter-
vention 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 out-
come of the suit was grounds to deny intervention, par-
ticularly 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.

5
In this connection, it should be pointed out that during the
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.
20 No. 10-2174

IV. Conclusion
It was error for the BRB to refuse to dismiss the modi-
fication proceeding and to permit Travelers to intervene
in the proceeding. Accordingly, the decision of the BRB
is R EVERSED, and this matter is R EMANDED to the BRB
for remand to the ALJ with instructions to reinstate the
ALJ’s 2001 award of black lung benefits to Mr. Crowe.

H AMILTON, Circuit Judge. I join Judge Murphy’s opin-
ion 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 pro-
ceeding 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 admin-
istrative 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 pro-
gram prizes accuracy over finality to an unusual degree,
incorporating the Longshore and Harbor Workers’ Com-
pensation 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 reconsidera-
tion, 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 misunder-
standing about the consequence of Zeigler Coal’s tac-
tic—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 deter-
mination 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 adminis-
trative 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 pro-
vides 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 re-
quired 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 peti-
tion 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 en-
courages employers to try to delay initial benefit deter-
minations 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 pro-
gram. (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 admin-
istrative law judges must entertain routine petitions to
modify by scofflaw employers. If modification is granted,
26 No. 10-2174

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 administra-
tive 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

1
As Judge Ripple explains, the principle that a modification
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).
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 modi-
fied. The fact that the injunction was erroneous or uncon-
stitutional 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). Simi-
larly, 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 will-
fully 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, how-
ever, 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 fami-
lies, 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 ad-
ministrative 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 bene-
fits.
The general point about the roles of the ALJ and BRB
is correct, and in other contexts they are entitled to sub-
stantial leeway in exercising that discretion. Ac-
cord, Hilliard, 292 F.3d at 547; id. at 554-55 (Wood, J., dis-
senting) (arguing for deference to agency’s decision
to deny modification to avoid piecemeal litigation that
would exhaust claimants’ resources). I respectfully dis-
agree, 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 funda-
mental, 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 tut-
tut administered by the ALJ. Far more meaningful than
those mere words was the decision to give the em-
ployer (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 ap-
proached 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 em-
ployer 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

R IPPLE, 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 em-
ployees who become disabled as a result of their em-
ployment. 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,” 2 I understand
my colleagues’ aversion to a system that allowed the

1
See Jessee v. Dir., OWCP, 5 F.3d 723, 725 (4th Cir. 1993) (“[T]he
‘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))).
2
Old Ben Coal Co. v. Dir., OWCP (Hilliard), 292 F.3d 533, 535
(7th Cir. 2002).
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 administra-
tive 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 fami-
lies.” 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 sub-
stantially 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

In the 1972 Act, Congress gave specific direction to
both the SSA, which maintained its jurisdiction over pre-
1974 3 claims, and to the Department of Labor, which
handled new claims filed in 1974 and, later, the admin-
istrative 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 con-
sider certain types of evidence in making benefits deter-
minations, including lay testimony; it also prohibited the
agencies from relying on negative x-rays as the exclu-
sive evidence to deny a claim. See 30 U.S.C. § 923(b).
It further expanded the definition of total disability due
to pneumoconiosis 4 to reach more miners and broadened
the presumptions favoring the miner. See id. § 902(f).
The 1977 amendments to the 1972 Act further
liberalized the standards for establishing eligibility by

3
The 1972 Act moved the transition from SSA to the Depart-
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 eventu-
ally 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).
4
“The term ‘pneumoconiosis’ means a chronic dust disease
of the lung and its sequelae, including respiratory and pulmo-
nary 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)).
No. 10-2174 35

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 respira-
tory 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 increas-
ingly 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.5 Specifi-
cally, three out of the five presumptions in favor of claim-
ants were eliminated; rules binding the agency to ac-
cept 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).

5
See John S. Lopatto III, The Federal Black Lung Program: A 1983
Primer, 85 W. Va. L. Rev. 677, 678 & nn.10-11 (1983).
36 No. 10-2174

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 Long-
shore 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 pay-
ment 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 modi-
fying the order. Id.6 The grounds for modification are
“a change in conditions or . . . a mistake in a determina-
tion of fact.” Id.

6
For a history of the evolution of this provision to permit
modification in progressively more circumstances, see Banks v.
Chicago Grain Trimmers Ass’n, 390 U.S. 459, 461-64 (1968).
No. 10-2174 37

The legislative history for the 1969 FCMHSA offers
nothing specifically to explain the choice to incorporate
the Longshore Act’s procedures, much less the modifica-
tion 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 Labor7 developed
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 Pro-
grams (“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

7
Earlier regulations were promulgated, of course, by the
Secretary of Health, Education, and Welfare, under the author-
ity to adjudicate claims from the initial application period. See
Pittson Coal Group v. Sebben, 488 U.S. 105, 108-11 (1988) (dis-
cussing generally the historical series of regulations by the
two departments and their relationships to one another).
38 No. 10-2174

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). 8 In addition to
stating that the “modification proceeding[] shall be con-
ducted 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).

8
The regulations were amended substantively in December
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).
9
The statute provides that the modification authority rests
with the “deputy commissioner,” a position that is now occu-
pied 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).
No. 10-2174 39

C. Precedents Interpreting the Modification Authority
The Supreme Court has long understood the modifica-
tion 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, how-
ever, 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 Long-
shore 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 determi-
nation 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 amend-
ment was to vest [the agency] with broad discre-
tion to correct mistakes of fact, whether demon-
strated by wholly new evidence, cumulative
evidence, or merely further reflection on the evi-
dence 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 modifica-
tion 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 omit-
ted). 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 proce-
dure. In Hilliard, we reviewed the agency’s denial of
an employer’s modification petition. In denying modi-
fication, the ALJ had noted that modification was discre-
tionary 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 pre-
sented 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 over-
come in some situations by various considerations and
42 No. 10-2174

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).10 We specifically ruled that this standard
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

10
Indeed, we went so far as to say 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.
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 sub-
stantially 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 sup-
ported by relevant evidence that a rational mind
might accept as adequate to support a decision.
We do not reweigh the evidence, resolve incon-
sistencies in the record, make credibility determi-
nations, 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 con-
cluding 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

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.1 1 Mrs. Crowe now
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 inter-
vention in 2009. I consider those arguments in turn.
At the outset, it should be noted that, in the dissolu-
tion 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].

11
At oral argument, it became apparent that Travelers is
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.
46 No. 10-2174

Old Ben Coal Co. v. Dir., OWCP, 476 F.3d 418, 419 (7th
Cir. 2007) (involving the Horizon bankruptcy) (modifica-
tions 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 dissolu-
tion] 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 bank-
ruptcy 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 impli-
cated Article III jurisdictional concerns before this court,
not the right to proceed before the agency. Nevertheless,
they are instructive. We permitted untimely interven-
tion 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 ex-
plicitly 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 re-
peatedly objected before the Board to participation of
counsel on behalf of the dissolved employer, he did so
before Melvin and Griskell rejected the respective insur-
ers’ 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 bene-
fits. 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

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;12 although that motion was denied, see Order
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 unin-
terrupted by the issue of who actually litigated the modi-
fication petition. The relevant question in the modifica-
tion has always been substantive entitlement to benefits
based on medical evidence.

12
The panel majority opinion notes that the surety in Griskell
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 litiga-
tion 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.
50 No. 10-2174

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.1 3

2. The Agency Acted within its Discretion in Per-
mitting Intervention
After rejecting Travelers’s argument that the timing of
its intervention was reasonable in light of the develop-
ment of the law of our circuit, the panel majority notes
that Travelers’s “behavior, though not commendable,

13
The panel majority supports its decision on an interpreta-
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).
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 Pro-
cedure § 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 con-
tinued 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 in-
troduction 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 con-
cluding that modification would serve justice under the
Act. Specifically, she avers that the employer behaved
No. 10-2174 53

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.1 4
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,

14
Specifically, in a procedural order issued in 1994 and another
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.
54 No. 10-2174

Mrs. Crowe should continue to receive benefits because
of the conduct of the employer. Certainly, the pro-
ceedings 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. More-
over, 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). 1 5 Nevertheless, the ALJ was in
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 argu-
ments that justice under the Act would not be served
by denial of a modification that he already had con-
cluded was warranted by the evidence. He acknowl-
edged the unlawfulness of the employer’s conduct, but
found it did not work a manifest injustice to Mr. Crowe

15
Although we noted in Hilliard that an employer’s attempt
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.
No. 10-2174 55

because his benefits were paid by the Trust Fund during
the litigation.16 The ALJ considered the diligence of the
employer and the quality of evidence produced in the
modification proceeding.1 7 His opinion makes clear that,

16
On the matter of nonpayment, the ALJ wrote:
I do not believe that the employer’s delay in the pay-
ment of benefits to the claimant is a significant enough
factor to justify denying employer’s request for modifi-
cation. It does not establish that modifying the
previous award of benefits would be a “manifest
injustice,” especially considering the “statutory prefer-
ence 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).
17
On the matter of diligence, the ALJ conducted a brief review
of the parties’ litigation strategies throughout the decades-
long 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 pro-
ceeding 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...)
56 No. 10-2174

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 con-
clude that the interest in accuracy, which occupies a
unique place in black lung litigation, should not be out-
weighed 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

17
(...continued)
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] other-
wise.” 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 re-
garding the state of the claimant’s medical condition.” Id.
No. 10-2174 57

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 em-
ployer’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 addi-
tional 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 inter-
locutory orders of the relevant agency or court.1 8
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 determina-
tion did not control the ALJ’s conclusion on remand.
The remand simply provided the ALJ an oppor-

18
Matter of Xonics, Inc., 813 F.2d 127, 130-31 (7th Cir. 1987)
(“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 ques-
tions 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.”).
58 No. 10-2174

tunity to reexamine the evidence.1 9 In doing so, the ALJ
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 mis-
stated 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-

19
The complete reexamination of the evidence was within
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.
No. 10-2174 59

minations, the ALJ did not abuse his discretion in deter-
mining that justice under the Act was served by the
modification. Finally, although we may review interlocu-
tory orders of the Board, any legal error in its 2004
ruling proved inconsequential; the ALJ’s opinion com-
pletely reevaluated the evidence and made clear that he
believed the record did not support Mr. Crowe’s
claims. Accordingly, I would deny the petition.

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