Black Lung is a disease caused by breathing coal mine dust. It is incurable and it often gets worse over time. Treatment is limited to relieving symptoms and preventing complications.
Black Lung includes clinical coal workers’ pneumoconiosis and Chronic Obstructive Pulmonary Disease (COPD) caused by coal mine dust exposure.
Pneumoconiosis is diagnosed by X-ray, CT Scan or biopsy. COPD is diagnosed by symptoms, including shortness of breath, cough and sputum production, and by evidence of reduced respiratory function.
The 1969 Coal Mine Safety Act created a federal compensation program for miners disabled by Black Lung and their survivors. The program is administered by the U.S. Department of Labor Office of Workers’ Compensation Programs (OWCP). To win benefits, a miner must prove that he has Black Lung and that he is totally disabled due to a breathing impairment caused at least in part by Black Lung. A widow of a miner whose death was due to Black Lung is entitled to benefits.
The Affordable Care Act of 2010 contained important changes to the Black Lung Benefits Act. Under these changes, a miner with at least fifteen years of underground coal mine employment or surface mine work with similar dust exposure who has a disabling breathing impairment is entitled to the presumption that the disability is due to Black Lung. For a widow, there is a presumption that the miner’s death was due to Black Lung. The operator can rebut the presumption by proving the miner did not have Black Lung or by proving the miner’s disabling impairment or death was not due to his coal mine employment. The widow of a miner who was disabled by Black Lung at the time of his death is automatically entitled to benefits. These changes apply only to claims filed after January 1, 2005.
The Affordable Care Act could not have come at a more crucial time. Just this year, the National Institute of Occupational Safety and Health found that the rate of the most severe form of black lung among Appalachian coal miners has resurged to the same rate it was before the federal government started regulating coal mine dust levels 45 years ago. In other words, the risk of catching severe black lung is actually worse for miners today than it was in 1969. However, seeking benefits in light of this evidence is not so easy. In 2013, an investigation by The Center for Public Integrity revealed the specifics of how the coal industry spends millions of dollars to employ doctors and lawyers to defeat black lung claims. Coal miners often lack the resources, money, and access to legal representation to counter these efforts.
ACLC works with other attorneys and advocates to trade knowledge of the black lung benefits system. This past spring, ACLC sponsored and hosted its first Black Lung CLE (Continuing Legal Education), designed to update fellow attorneys on what we and others have been seeing in black lung law. These efforts have been supplemented by our black lung blog, Devil in the Dust, which discusses the policies, laws and medical literature surrounding the disease.
ACLC, along with the National Black Lung Association and others, advocates for changes in legislation and regulations to improve the Black Lung benefits program. In addition, we have worked for years to advocate for regulations that reduce the allowable level of dust in mines in an effort to eliminate Black Lung. These efforts paid off in May of this year, when MSHA reduced the nationwide coal mine dust standard for the first time since 1972.
Despite these reforms, the industry remains highly influential. The new dust standard issued this year was only lowered to half of what NIOSH originally recommended. Miners still get the disease, and the most severe form, progressive massive fibrosis, is on the rise in Appalachia. Nearly 76,000 miners have died from black lung disease since 1969, the year coal mine dust regulations were put in place. And it is still difficult to receive benefits. At the Appalachia Citizens’ Law Center, we will continue to confront these challenges, and fight for our miners’ health and safety.
The following three Black Lung appeals highlight the long and difficult road that claimants face when applying for federal Black Lung Benefits:
* In 2005, in the case Ruby Sammons v. Wolf Creek Collieries, the 6th Circuit affirmed the award of widows’ benefits to Ms. Sammons and commented on the Employer’s efforts to prolong the “30-year war” of fighting her claim. Mrs. Sammons filed her claim in 1976.
* In 2012, in James Adams v. A & E Coal Co., the 6th Circuit rejected the argument of the coal company that the judge erred in evaluating the medical science regarding miner’s occupational lung disease. Because the Court issued a published decision, it ensured that the discussion of the medical science regarding black lung contained in the U.S. Department of Labor’s preamble may be used to decide the weight of medical opinion evidence in individual black lung claims. Coal miners will be able to rely on this important decision to strengthen their claims in future black lung cases.
* In 2005, in Edgar Martin v. Ligon Preparation Co., the 6th Circuit held that the ALJ failed to properly evaluate medical evidence and reversed the decisions of the ALJ and the BRB that had denied Mr. Martin benefits. After three years of additional litigation Mr. Martin’s claim was approved in 2009, 22 years after Mr. Martin applied for Black Lung benefits. Mr. Martin died soon after the ALJ awarded benefits to him. The employer appealed the decision to the Benefits Review Board, which upheld the award. The employer then requested modification of the award, alleging it was based on a mistake of fact. A hearing was held by an ALJ on the request for modification but the decision has not been issued at this time.
OVERVIEW OF FEDERAL BLACK LUNG BENEFITS PROGRAM(PDF slideshow)