Midland Coal Company v. Director, Office Of Workers' Compensation Programs

358 F.3d 486, 2004 U.S. App. LEXIS 2624
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 18, 2004
Docket02-2734
StatusPublished
Cited by3 cases

This text of 358 F.3d 486 (Midland Coal Company v. Director, Office Of Workers' Compensation Programs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Midland Coal Company v. Director, Office Of Workers' Compensation Programs, 358 F.3d 486, 2004 U.S. App. LEXIS 2624 (7th Cir. 2004).

Opinion

358 F.3d 486

MIDLAND COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY, Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and George W. Shores, Respondents.

No. 02-2734.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 2003.

Decided February 18, 2004.

COPYRIGHT MATERIAL OMITTED Mark E. Solomons (argued), Greenberg Traurig, Washington, DC, for Petitioners.

Christian P. Barber (argued), Dept. of Labor, Office of the Solicitor, Washington, DC, for Respondent. Thomas E. Johnson (argued), Johnson, Jones, Snelling, Gilbert & Davis, Chicago, IL, for Respondents.

Thomas O. Shepherd, Jr., Benefits Review Board, Washington, DC, for Party-in-Interest.

Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

George W. Shores worked for Midland Coal Company as a miner for 26 years. He now suffers from a variety of respiratory and pulmonary problems. On three separate occasions, he was unsuccessful in his efforts to obtain benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. His luck changed the fourth time around when an administrative law judge (ALJ) ruled in his favor and the Benefits Review Board affirmed. Midland now appeals.

* Shores worked for Midland as a coal miner from 1954 until his retirement in 1982. Much of his time was spent above ground working as a welder at strip or surface mines, but even there, he was exposed to substantial amounts of coal dust. He also smoked for some thirty years, but he quit in 1971, eleven years before he retired. When Shores began to suffer from various respiratory problems, he applied for benefits under the Black Lung Benefits Act. He was rejected three times, in 1981, 1994, and 1996. Meanwhile, his respiratory symptoms worsened and his overall health deteriorated. Shores suffered his third heart attack in 1997, and in 1998 he applied for benefits for a fourth time.

This time, the ALJ relied on the duplicate-claim provisions of 20 C.F.R. § 725.309(d)(4) and found that there had been a material change in condition that justified an award of benefits. In reaching that conclusion, the ALJ had to decide which of the eight medical opinions before him were persuasive. He rejected five opinions for various flaws: Dr. Marder (understating Shores's smoking history), Drs. Dengelman, Shima, and Sanchez (black lung disease mentioned only in passing), and Dr. Dababneh (no explanation for the medical basis of his conclusion). Of the three remaining physicians, Drs. Skillrud and Selby concluded that Shores did not have an impairment related to coal-dust exposure, but instead suffered only from simple asthma. Dr. Cohen, in contrast, found that Shores was suffering from pneumoconiosis.

The ALJ decided that Dr. Cohen's opinion was the best-reasoned of the three that were worthy of consideration, largely because Drs. Skillrud and Selby had relied on an unduly narrow definition of pneumoconiosis by requiring chest x-ray evidence of coal-dust exposure. This, the ALJ noted, was a standard component of a medical diagnosis, but was merely one of several ways to establish eligibility for benefits under the "legal" or "regulatory" definition of the ailment. See 20 C.F.R. § 718.202. In addition, the ALJ found that the two nay-saying physicians had not integrated all of the objective evidence as well as Dr. Cohen had done, particularly test results showing diffusion impairment, reversibility studies, and blood-gas readings. The ALJ concluded that Shores had met the requirements for an award of benefits; the Board affirmed, and Midland now appeals.

II

Midland offers two ambitious arguments at the outset, but both fall short. Because they involve purely legal propositions, our review is de novo. Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 478 (7th Cir.2001).

Midland first urges that Shores's claim for benefits was barred on res judicata grounds. It argues that nothing in the Act overrides ordinary principles of finality and claim preclusion or authorizes the re-filing of claims that have finally been denied after an opportunity for a full and fair adjudication. This is not, however, an accurate statement of the special preclusion rules that apply in this area. At the time of Shores's fourth filing, an en banc decision of this court had interpreted the regulations contained at 20 C.F.R. § 725.309 to the contrary, squarely holding that traditional principles of res judicata do not bar a subsequent application for black lung benefits where a miner demonstrates a material change in at least one of the conditions of entitlement. See Peabody Coal Co. v. Spese, 117 F.3d 1001, 1008-09 (7th Cir.1997) (en banc). And while it is true that Spese interpreted an earlier version of § 725.309, and that the new version does not have retroactive effect, see 20 C.F.R. § 725.2(c), the revised regulations explicitly codified the holding of Spese. See 65 Fed.Reg. 79,920, 79,974 (Dec. 20, 2000). Midland's general claim of preclusion is therefore without merit.

Midland also assaults the ALJ's finding that pneumoconiosis can be progressive and latent. The ALJ relied on the implementing regulation set forth at 20 C.F.R. § 718.201(c), which recognizes pneumoconiosis "as a latent and progressive disease which may first become detectable only after the cessation of coal mine dust exposure." The Department of Labor adopted this regulation after Shores filed his fourth application for benefits; it was to take effect on January 19, 2001.

Whether pneumoconiosis (including the condition described for these purposes as "legal" pneumoconiosis) is a disease that can be latent and progressive is a scientific question. The Department of Labor's regulation reflects the agency's conclusion on that point. Midland is now challenging that scientific finding, but we see no reason to substitute our scientific judgment, such as it is, for that of the responsible agency. Prior to the adoption of § 718.201(c), this court repeatedly noted that it would credit the position adopted in benefits proceedings by the Department of Labor on the progressivity and latency question, unless the mine operators produced the type and quality of medical evidence that would invalidate a regulation. See Old Ben Coal Co. v. Scott, 144 F.3d 1045, 1048 (7th Cir.1998); see also Spese, 117 F.3d at 1010; Freeman United Coal Mining Co. v. Hilliard, 65 F.3d 667, 669-70 (7th Cir.1995).

At that time, because the agency had not gone through formal rule-making procedures, this deference was not compelled under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), but it was appropriate under United States v. Mead Corp., 533 U.S. 218, 234-35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). See Alaska Dep't of Envtl. Conservation v. EPA, ___ U.S. ___, ___, 124 S.Ct.

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