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Jenkins Fenstermaker, PLLC

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Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

Jenkins Fenstermaker, PLLC

215 S. 3rd Street

Suite 400

Clarksburg, WV 26301

Phone (304) 521-6120

Toll Free (866) 617-4736

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By James Heslep of Jenkins Fenstermaker, PLLC on 07/15/2022
Black Lung Defense in WV: Settlements Could Benefit All

The political and legislative environment around federal black lung claims and benefits is complex and challenging for employers and employees alike. Unlike most claims filed for work-related injuries, federal black lung claims are not eligible for settlement. With liabilities mounting and difficult to predict, a federal black lung settlement option could offer more certainty and stability, plus financial benefits, for coal companies and others in need of black lung defense in WV as well as for miners and their families.

Black Lung Defense in WV: Addressing the Challenges

The current systems in place for black lung claims are less than ideal for all parties involved. The Black Lung Disability Trust Fund (Trust Fund)—established to compensate miners who worked for companies that are unable to cover their black lung claim liabilities—is underfunded. Meanwhile, the number of producing mines and coal mine operators continues to decrease, leaving fewer companies to pay the taxes that, in part, support the Trust Fund.

The administrative and legal processes related to black lung claims take a significant amount of time, leaving employers unable to accurately determine their claim liability. An option for federal black lung settlement could ease the burdens on employers, insurers, and the Trust Fund while providing an expedited black lung process and more reliable compensation for miners.

An Overview of Black Lung Legislation

An overview of the black lung program helps put the complexities in perspective. Compensation for black lung disease or coal workers’ pneumoconiosis (CWP) was first provided under the Federal Coal Mine Health and Safety Act of 1969 (Coal Act). In 1972, the Black Lung Benefits Act (BLBA) created state systems for administrating black lung claims based on Department of Labor standards. State systems for administering these claims have not proven viable, and coal operators have been unable to pay the related costs.

In response to these challenges, Congress passed the Black Lung Benefits Reform Act of 1977. This is the law that established the Black Lung Disability Trust Fund, which was to be funded through an excise tax on coal. While coal companies have paid these taxes, the Trust Fund has been underfunded almost since it was created and has borrowed extensively from the Treasury Department’s general fund to pay benefits. The debt of the fund is expected to continue to grow, with liabilities projected to possibly reach $15 billion by the year 2050.

The Patient Protection and Affordable Care Act (ACA), passed in 2010, amended the BLBA, providing a broader scope of benefits to mine workers. In 2022, HR 6791, the John White Ensuring Timely Black Lung Benefits Act was introduced in the US Congress. The Act seeks to make amendments to the Coal Act to provide an expedited black lung process.

Challenges in Black Lung Defense in WV

The requirements for eligibility and structure of benefits for black lung claims are quite different from typical workers’ compensation claims. There is no statute of limitations for federal black lung claims, so miners can file at any time and can refile for benefits at any time, even after a denial.

Because benefits are paid to employees for the remainder of their lives and to their dependent survivors after death, the indemnity benefit costs related to black lung claims are substantial and extensive.

The laws and policies regarding black lung claim administration create an environment in which estimating liabilities for black lung claims ranges from difficult to impossible. This, in turn, makes insurance more expensive to unobtainable and limits employers’ options for black lung self-insurance.

How Federal Black Lung Settlement Could Help

Federal black lung settlement options could help manage the costs and uncertainty that are overburdening the black lung benefits systems. Most other kinds of workers’ compensation claims can be and are settled regularly. Not having the option to settle claims adds to the uncertainty in estimating liabilities and contributes to inflated costs. These costs must be passed sometimes to consumers, causing increases in energy expenses for the public.

The option for settlement of black lung claims could help stabilize the federal black lung benefits system, decrease overall costs, and offer advantages to coal operators, employees, and taxpayers.

Talk to a Black Lung Attorney in WV

If you need assistance with black lung defense in WV or would like to further discuss the possible benefits of federal black lung settlement, reach out to James “Mac” Heslep at the Clarksburg, WV office of Jenkins Fenstermaker, PLLC. Mac is an experienced black lung attorney in WV who is well-respected by his clients and peers and helps coal operators in and out of the Mountain State. Contact him today by calling (304) 521-6120 or by completing the firm’s online contact form.