Black lung disease, or Pneumoconiosis, is an occupational hazard that’s exclusive to coal mining. About 16% of miners contract black lung disease annually.
The disease generally appears in individuals who work or have worked specifically in coal mines. Mostly associated with underground mining, it’s also possible to contract the disease above ground during processing, or just under the surface during strip mining.
Many patients aren’t diagnosed with it until long after they’ve retired from coal mining, usually over the age of 50. The disease takes many years to develop and is an incurable, progressive disease. Because of the deterioration of the patient’s lungs, the best palliative treatments simply involve helping a patient breathe.
Miners who develop black lung have had the option to file claims within a three-year period of either diagnosis or the last day of exposure, but were not strictly held to that period. The disease lies dormant for sometimes many years long after the individual’s exposure. Because of the nature of black lung, about 1,500 victims die each year from it. Once diagnosed, it only gets worse and ends with the death of the patient.
The West Virginia Supreme Court Decision
Previously, miners were not strictly held to the three-year time period for an examination and claim filing. But a recent decision by the West Virginia Supreme Court changed things, making it more difficult for miners to file a claim for black lung disease.
Three miners and one factory worker saw their claims rejected for occupational pneumoconiosis benefits by the Workers’ Compensation Board of Review. Because the claims weren’t filed within three years of the last exposure or within three years of being diagnosed with black lung, the court decided, they were properly rejected for benefits. The court voted in favor of the Occupational Pneumoconiosis Board, stating that the employees could have filed at any time within the three-year time period of receiving a diagnosis.
On Friday, November 2, 2018, Justice Tim Armstead wrote the 4-1 majority opinion, stating that benefits:
“Cannot be awarded on a diagnosis of OP alone. An impairment is also required. . . there shall be no permanent partial disability awarded ‘based solely upon a diagnosis of occupational pneumoconiosis, it being the intent of the Legislature to eliminate any permanent partial disability awards for occupational pneumoconiosis without a specific finding of measurable impairment.’”
Chief Justice Margaret Workman offered a dissenting opinion, disagreeing completely with the majority. In here opinion, she stated that although the three-year period always existed,
A claimant has never been required to bear the burden and expense of having pulmonary function tests performed and evaluated before filing a claim. Because “it is and has been the function of the OP Board to determine all medical questions relating to cases of compensation for occupational pneumoconiosis. W.Va. Code § 23-4-8a (2005).” Fenton, 222 W.Va. at 431, 664 S.E.2d at 772
Background
How did the WV Supreme Court suddenly side against the state’s mining community?
In response to a 2017 investigation by a Charleston TV station detailing expensive renovations in the West Virginia Supreme Court offices, lawmakers impeached the entire Supreme Court in August of 2018. The articles of impeachment included wasteful spending, incompetency, maladministration, neglect of duty, and potentially criminal behavior. This major scandal led to impeachment charges that will eventually end in trial for the justices.
After the purging the WV Supreme Court, Gov. Jim Justice appointed new justices to fill in the remaining tenure for the suspended justices. These new justices issued their ruling that goes against the previous legal precedent, making it more difficult for miners suffering with black lung disease to file for and receive benefits. Many believe that these justices were unfamiliar with settled case law, and ruled strictly in favor of the Board. Chief Justice Workman was the only one who disagreed.
Legislative Response
In response to the Supreme Court’s ruling, three bills have been introduced into the West Virginia Legislature to give miners diagnosed with black lung disease assistance:
- Senate Bill 260, a bill cosponsored by two physicians that would alter the current laws to allow miners to receive partial disability benefits after a diagnosis of black lung disease. Those found to have early-stage black lung would be eligible for 20 weeks of benefits.
- Senate Bill 144, which would offer $300 in monthly benefits to miners through a state black lung program for miners with at least 10 years of exposure
- House Bill 2588 challenges the Supreme Court ruling head-on. The bill would allow a miner to request an examination from the Occupational Pneumoconiosis Board regardless of any time constraints for claim filing, and require insurance carriers to pay the entire cost of the exam.
Currently, these bills have not yet been passed into law.
Representing Miners And Black Lung Patients In West Virginia
Mining injury cases are complex, and not every lawyer understands how to represent you. If you or a loved one suspect or have been diagnosed with black lung disease and need help, call us.
The Love Law Firm is Charleston, West Virginia’s personal injury law firm with more than 20 years of extensive experience handling all types of mining claims including black lung. Make an appointment today at 304-344-5683 (or use our online contact form) and schedule a free consultation. Our contingency fee arrangement means you won’t pay unless we win your case and recover money.
