Sunday, February 24, 2019
In a new article, published in mid-2018, author Evan Barrett Smith addresses current issues surrounding the federal Black Lung Benefits Act. His focus is principally on legal developments since the year 2000. Evan Barrett Smith, Black Lung in the 21st Century: Disease, Law, and Policy, 120 West Virginia Law Review 797 (2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3152733.
Smith initiates his discussion with noting that, to everyone’s surprise, cases of Black Lung by coal miners are on the rise. At one point not long ago, he notes, some researchers believed that the diagnosis was one of the past. Yet, modern coal mining practices and inattention to safety standards restricting coal dust exposure, among other factors, have reversed the trend.
This phenomenon was one known to this writer, as workers’ compensation judges in Virginia (Deputy Commissioners) have reported the last few years a significant uptick in the number of workers’ compensation cases for the condition. It is also one that has been treated in a PBS documentary. See https://www.pbs.org/wgbh/frontline/film/coals-deadly-dust/. (Smith, via Twitter, has endorsed the film.)
The author is generally pessimistic; still, the good news is that, if fidelity is shown to dust exposure limits as established in 2014 by the Department of Labor, the Black Lung incidence rate should be lowered. This is so, however, only with compliance by industry.
The author, while pleased that the Affordable Care Act, via the “Byrd” Amendment, restored a presumption of causation for miners, is highly critical of the adjudication procedures in federal Black Lung cases. Indeed, he characterizes the delays in adjudication of cases as a “disgrace.” Yet, he argues against the advocacy of some, who assert that Black Lung claimants should be able to compromise-settle their claims. He points out that the most important benefit under Black Lung is medical treatment, and that this is an item which should not lightly be thought appropriate for a release. And, because it is medical coverage that mine operators are seeking to avoid, they are not going to want to engage in partial settlements. (That, in fact, is the Pennsylvania experience, where settlement of all aspects of a claim is the default method of settlement, one usually mandated by carriers if a lump sum with release is to conclude a case.)
The Kentucky-based author, who has represented coal mining disease victims, has authored an articulate and superbly edited, educational review of the current landscape of Black Lung. His commentaries, notably, are also at https://twitter.com/evanky?lang=en; and https://twitter.com/BlackLungBlog.