A recent decision of the Sixth Circuit Court of Appeals highlights the precarious position miners and their estates find themselves in when seeking compensation under the amendments to the Black Lung Benefits Act (BLBA).[i] In Shepherd v. Incoal, Circuit Judge Martha Craig Daughtrey reviewed an administrative law judge’s (ALJ) miscalculation of Mr. Shepherd’s total time of mine employment contrary to the language of the BLBA. The act provides a detailed, yet admittedly complicated scheme for determining length of employment in the event the miner’s work record is not clear or continuous.[ii] The calculation is dispositive to Shepherd’s claim because of an amendment to the BLBA ushered in by the Patient Protection and Affordable Care Act (ACA) which provides that “if a miner was employed for fifteen years or more in one or more underground coal mines . . . and if other evidence demonstrates the existence of a totally disabling . . . impairment, then there shall be a rebuttable presumption that such miner[‘s] death was due to [Black Lung].”[iii] In other words, Under the ACA “Big Coal” would have to foot the bill for medical expenses and survivor benefits so long as miners could show fifteen plus years of coal-mining employment and medical records to support occupational impairment.
In the Shepherds’ case, Incoal conceded that if the requisite fifteen-year work period could be established, Incoal would be unable to deny that Shepherd suffered and eventually died from Black Lung.[iv] It would seem easy enough, then, to prove whether or not Mr. Shepherd logged fifteen years in the mines. Except that Mr. Shepherd stopped working for coal companies all the way back in 1985, started his BLBA claim all the way back in 1987, it was not until 2008 that his wife Imogene brought this claim for survivor’s benefits, and it was not until 2011, one year after the passage of the ACA, that her claim was finally heard.[v] Attempting to secure employment records over 20 years old was a challenge in itself.
Compounding the confusion is whether miners will continue to enjoy such a presumption at all, given the ongoing partisan rankling over the ACA.[vi] In 2017, congressmen from coal-heavy districts introduced resolutions in both the House and Senate to preserve the so-called “Byrd Amendments” in the event of an Obamacare repeal.[vii] New challenges to the ACA, however dubious, beg the question of whether the Byrd Amendments are safe or if more proactive measures are needed.[viii] The House resolution is currently in committee purgatory and the Senate resolution dissipated in a budget reconciliation amendment and neither have force without approval in both houses.[ix]
Further, a subset of ALJs, such as those appointed to the Black Lung Benefits Review Board (BRB), have come under fire for the inadequacy of their appointments under the Appointments Clause of the Constitution, leading to a potentially high number of Board decisions being vacated and dragging out what is already an excruciatingly long process.[x] A recent congressional study suggested potentially rolling back the Byrd Amendments to the previous standard as one of many ways to address the Black Lung Benefits program’s ongoing debt.[xi]
The problem is not going away. The same congressional study found that rates of Black Lung and other related diseases are at their highest since the 1970s.[xii] Moreover, miners are contracting those diseases at younger ages and in greater clusters than previously observed.[xiii] While the Black Lung program may have its money problems, it is important for the legislators representing particularly affected regions to take steps to ensure the viability of the Byrd Amendments and improve the lives of those living in coal country. Resolutions may be enough for now, but victims of hazardous mining conditions and their families face uncertainty on several fronts. Affirmative measures from Congress and local legislators are needed so families like the Shepherd’s are not stuck with the bill.
[i] Shepherd v. Incoal, Inc., No. 17-4313, slip op. (6th Cir. Feb. 6, 2019).
[ii] Id. at 11.
[iii] 30 U.S.C. § 921(c)(4). (emphasis added) See also, 20 CFR § 718.305 2013 (implementing Byrd Amendments).
[iv] Shepherd, No. 17-4313 at 10.
[v] Id. at 2-3.
[vi] Kara Lofton, Obamacare Repeal Threatens A Health Benefit Popular in Coal Country, NPR Morning Edition (Jan. 24, 2017).
[vii] Evan B. Smith, Byrd Amendments Update: House Republicans from Coalfield Districts Introduce Resolution to Protect Black Lung Improvements from Obamacare Repeal, Black Lung Blog (Jan. 6, 2017). Available at http://www.blacklungblog.com/2017/01/byrd-amendments-update-house-republicans-from-coalfield-districts-introduce-resolution-to-protect-black-lung-improvements-from-obamacare-repeal/. (last accessed Feb. 26, 2019).
[viii] Sarah Kliff, Is the New Obamacare lawsuit headed to the Supreme Court?, Vox (Dec. 17, 2018). Available at https://www.vox.com/health-care/2018/12/17/18145400/obamacare-lawsuit-mandate-texas-supreme-court-voxcare. (last accessed Feb. 26, 2019).
[ix] H.R. 26, 115th Congress (2017); S.Amdt.65 to S.Con.Res.3, 115th Congress (2017); See generally, Legislation, Laws, and Acts, Chapter 3: Concurrent Resolutions, United States Senate. Available at https://www.senate.gov/legislative/common/briefing/leg_laws_acts.htm#3. (last accessed Feb. 26, 2019).
[x] Evan B. Smith, Benefits Review Board Decides Narrow Case Related to Effect of Lucia v. SEC in Black Lung Cases (Miller v. Pine Branch Coal Sales, Inc.), Black Lung Blog (Nov. 19, 2018). Available at http://www.blacklungblog.com/2018/11/benefits-review-board-decides-narrow-case-related-to-effect-of-lucia-v-sec-in-black-lung-cases-miller-v-pine-branch-coal-sales-inc/. (last accessed Feb. 26, 2019).
[xi] The Black Lung Program, the Black Lung Disability Trust Fund, and the Excise Tax on Coal: Background and Policy Options, Congressional Research Service Report at 21 (Jan. 18, 2019). Other suggestions include adjusting the excise tax on coal for payments into the Benefits fund, reduction in benefit amounts, and increasing the ability of the government to recover benefit costs from operators.
[xii] Id. at 2.