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Jenkins Fenstermaker, PLLC

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By James Heslep Of Jenkins Fenstermaker, PLLC on 05/13/2022
An Overview of the Federal Black Lung Program

Businesses operating in and around the coal mining industry are at great risk of liability for claims under the federal black lung program. The legislation and supporting regulations establishing the ground rules for mining operator liability are complex and occasionally expanded upon in black lung court cases. Here, an experienced black lung defense lawyer offers a primer on the federal Black Lung Benefits Act (BLBA) for mining operators.

Basic Information on the Federal Black Lung Program

The requirements of the Black Lung Benefits Act, 30 USC § 901 et seq., are an important concern for coal mine operators and, in some cases, businesses who work with them, too. The federal black lung program requires operators to pay medical expenses and monthly benefits to eligible miners who had been in their employ and who suffer from pneumoconiosis (black lung disease). In some cases, though, the Black Lung Disability Trust Fund (Trust Fund), administered by the US Department of Labor (DOL) pays the medical expenses and monthly benefits.

When the DOL Finds Operator Liability for Black Lung Disease

Typically, an operator is responsible for payment of expenses and benefits for miners who were employed by the operator for the final year of their coal mine employment if that employment occurred after January 1, 1970. If the employment was before that date, the Trust Fund pays the expenses and benefits. The fund also pays if, regardless of date:

  • No operator is legally liable for the expenses/benefits; or
  • The liable operator was self-insured at the time of the miner’s final year of employment and is now financially unable to pay the expenses/benefits.

The BLBA requires operators either to be qualifiedly self-insured against black lung claims or to have an insurance policy that guarantees payment of any expenses/benefits for which the operators are found liable. Operators who fail to maintain the ability to pay claims may be assessed a civil penalty of $1,000 per day. What’s more, if an operator fails to maintain the required insurance status, the president, treasurer and secretary of the company may become personally liable for the expenses/benefits owed to the miner.

How Does the Black Lung Claim Process Work?

The black lung claim process takes place in the Department of labor. A black lung benefits claim must be filed directly with the DOL Office of Workers’ Compensation Programs (OWCP). That office gathers the information required to determine whether the applicant qualifies for benefits, including a medical evaluation that the Fund pays for.

If the OWCP initially determines that an applicant is eligible for black lung benefits, the DOL will provide a Notice of Claim to any potentially liable operators. An operator has 30 days either to accept liability or to file a response contesting the claim. If the operator fails to file a response by the deadline, it loses the opportunity to later assert non-liability on several important bases, such as not being the employer of the miner during the last year of employment and disputing that the miner was exposed to coal mine dust during his or her employment.

After the initial notice by the DOL and any response by the operator, the DOL’s information-gathering process continues. It is important during this phase for an operator to be represented by an experienced black lung defense attorney, in part because the timely submission of relevant and persuasive information is critical to the DOL arriving at a correct decision.

If Your Company Is Found Liable for Black Lung Benefits Claims

Once the OWCP renders a final decision, either the claimant or the operator may file an appeal, which is heard by DOL’s Office of Administrative Law Judges. If an appeal, an administrative law judge (ALJ) conducts a hearing and entertains arguments from both sides. If the ALJ’s decision is adverse to an operator, the operator may request the ALJ to asking reconsider the decision, or, alternatively, file an appeal to the DOL’s Benefits Review Board.

A decision rendered by the Board of Review is final. No further right of appeal exists other than to request a modification of the award based on a change of conditions, which may be done within one year following the final decision.

The Best Resource for Your Defense in the Federal Black Lung Program

The entire process from start to finish is fraught with deadlines and other requirements that require close attention. Working with an experienced black lung defense lawyer is your best bet to ensure both that your company is properly insured in the first place and that claims against you are fully and properly defended.

James “Mac” Heslep at Jenkins Fenstermaker, PLLC provides comprehensive risk management and defense services to mine operators and other businesses involved with the mining industry dealing with the federal black lung program. For a consultation, call Mac at (304) 521-6120 or complete this online contact form.