Black Lung Disease: Coal Miners, Their Disability, and The Quantum of Proof

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Transcript

Workers Comp Matters: Black Lung Disease: Coal Miners, Their Disability, and The Quantum of Proof – 2/3/2015

 

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Alan Pierce: Welcome to Legal Talk Network and our show, Workers Comp Matters. I’m your host Alan Pierce, I practice workers comp law in Salem, Massachusetts with the law firm of Pierce Pierce & Napolitano where we represent injured workers and their family. Today, our show comes from the annual convention of the Workers Injury Law & Advocacy Group, otherwise known as WILG. We are at the Bacara Resort in Santa Barbara, California, and we are all learning about various issues and the various states regarding the general practice of workers compensation. I have a very special guest today on our show, and that is Joe Allman. Joseph Allman practices law in Indianapolis, Indiana with the law firm of Macey Swanson & Allman. Joe is a graduate of not only Indiana University in Bloomington, but he has his GED from Indiana University.He’s a member of the Indiana State Bar Association, the Indianapolis Bar Association, the Indiana Trial Lawyers Association. Obviously, he’s a member here at WILG, and he’s a member of the AFL-CIO Lawyers Coordinating Committee. He has written and spoken on numerous labor and employment personal issues and he focuses his practice primarily on federal employee workers compensation and has also developed a subspecialty in what’s known as Black Lung Law or Black Lung Benefits. So, Joe, I want to welcome you on Workers Comp Matters.

 

Joseph E. Allman: Thanks Allen, it’s nice to be here.

 

Alan Pierce: Let’s talk about the Black Lung Benefits act, that is the act upon which all of these claims are adjudicated. It is certainly something that up in my neck of the woods in Salem, Massachusetts, we have a big coal burning plant right across the harbor in Salem, but that’s about the extent of my knowledge of coal and the potential effects of breathing this stuff has. So tell us a little bit about the history and origins of benefits for miners who deal in coal excavation.

 

Joseph E. Allman: Well the Black Lung Act, as you know, is a benefit for coal miners and for their widows or widowers, due to the ingestion of coal become disabled or die because of coal and it was first passed in 1969 I believe, Alan. But it’s the newest part of my law practice, I really enjoy representing miners and their widows and their benefits. It’s quite interesting, it’s a difficult statute. It’s sort of a workers comp statute for coal miners and it’s a federal program. It’s been very enjoyable practicing in that.

 

Alan Pierce: And unlike some of the other state-based workers compensation, or even the federal employees compensation act which covers other federal employees and the funds are paid for by the Department of Labor and presumably the U.S. Treasury; there is a unique funding mechanism, is there not, for the BLBA cases?

 

Joseph E. Allman: Well, what’s really interesting to me – as you say I do some federal workers comp work also – this is different in that these benefits are paid to miners from the coal companies. And there’s even another special part of the statute that they’re paid interim benefits from the trust funders. There’s a trust fund established by Congress to pay when claims are disputed. So a miner can be provisionally deemed qualified for benefits by the United States Department of Labor. And if the coal company wants to dispute that and appeal that, then a person draws benefits from a trust fund until his case is adjudicated. If he wins a case, then the coal mine has to pay the benefits, pay the trust fund back and continue to pay the benefits. So that’s the different scheme compared to most of the stuff that we do, really.

 

Alan Pierce: And that trust fund that you referred to, that’s the Black Lung Disability Trust fund?

 

Joseph E. Allman: Yes.

 

Alan Pierce: So those monies belong to the government?

 

Joseph E. Allman: Yes, like a tax; I believe it’s from taxation of the coal companies, they pay into that.

 

Alan Pierce: Are there – well first of all, let’s talk about what Black Lung is. The medical term, I assume, is not Black Lung.

 

Joseph E. Allman: It’s pneumoconiosis. You hear it refer to as coal workers pneumoconiosis, or CWP for short, and it is a condition of the lungs, the reaction to inhalation of dust particles.

 

Alan Pierce: Let’s compare or contrast it to other pulmonary-based conditions that perhaps most of our listeners might be more familiar with. Such as asbestosis which could lead to mesothelioma or asbestos disease.

 

Joseph E. Allman: Well very similar, really, very similar in its an occupational exposure in that regard.

 

Alan Pierce: Is it dose-related, time-related?

 

Joseph E. Allman: That’s a great question. It’s basic exposure-related. The people are either susceptible to a negative reaction to coal dust or they’re not. So the miners can have 40 years of underground mining experience and never show a sign of disability relating to the pneumoconiosis. And miners can have as short as ten years’ exposure and have severe forms of pulmonary disability related to it.

 

Alan Pierce: Is there a latency effect or is it accumulative?

 

Joseph E. Allman: That’s a hot topic right now in Black Lung and the regulations as formulated by the Department of Labor recognized the majority of medical opinions support a finding that Black Lung can be both latent and progressive. A lot of the clients that I have, they have worked in the coal mines 25, 35, 34 years, but they haven’t worked in the coal mines for maybe 20 years. And they show signs of pulmonary disability really for the first time, some of them 5, 10, 15 years after they have left and been exposed to coal dust and left the mines.

 

Alan Pierce: and what are the symptom complex- how does it manifest itself?

 

Joseph E. Allman: Coughs, some of the most classic of symbols are CWP, or shortness of breath. Shortness of breath, cough, phlegm, maybe breathing-impairment.

 

Alan Pierce: So how can a medical professional distinguish that from other types of either age-related or smoking-related or other related pulmonary dysfunction? Are there other tests that will isolate coal dust?

 

Joseph E. Allman: Sure, Alan, the first thing the doctor does, like any doctor, is take a history. No coal dust exposure, it’s not in the equation, but if a doctor’s going to see someone with a pulmonary impairment that has over ten years of coal mining experience, that has to go into their calculations. But they do pulmonary function testing, arterial blood gas testing, they do stress exercise testing. The first thing that’s done with coal miners is to take chest X-Rays. So older analog chest X-Rays have been used mostly, that’s becoming digitized and that science is advancing a little bit. There are no standards for digitized chest X-Rays but there are for analog. So the first thing the doctor will do is take a history, do an examination, they’ll take all these tests, these pulmonary function tests, arterial blood gases, chest X-Rays, and look for evidence. Chest X-Rays will show opacities, little small circles in the lungs, usually in all sections of the lungs and in both lungs. So one thing about the science of Black Lung is that cigarette smoking and rock dust and coal dust is that they do the same thing and the lungs react the same way to the exposure to these things. So when a doctor does all of these tests, these chest X-Rays, he makes his best, educated opinion, whether it is or not. And that’s where we are in these cases, that’s where the argument is always with: our doctors or our Department of Labor doctors, or the coal mine doctors. And these guys – most of them are guys, not all men, some women work in the coal mines. I haven’t had a widower yet, but I’ve had widow cases. But it’s always the battle with medical experts.

 

Alan Pierce: You brought up smoking. In qualifying for benefits, my experience with, for example, police and fire – primarily fire personnel – that might be exposed to smoke and other toxic, obnoxious elements, there is a presumption by state law that any cardiac or pulmonary-related disease is presumed to be related to occupational exposure. Is there a similar presumption for miners?

 

Joseph E. Allman: There’s a couple of presumptions in the statute. There’s a presumption that if a miner has a pulmonary disability and has ten years of employment in mines, then he has it because of the mine employment. There’s a 15 year presumption which is more significant, and the late Senator, Robert Byrd, from West Virginia, inserted into the ACA, the Affordable Care Act, before he passed away, this presumption that had existed prior to 1980, I think, and then it was taken out of the statute: if a coal miner has a disabling, pulmonary condition that keeps him from being able to engage in his last coal mining job and he has more than 15 years of employment in the coal mines, he’s presumed to be totally disabled because of his coal mine employment. And that’s a rebuttable presumption.

 

Alan Pierce: And I guess it would be rebuttable by medical evidence offered by the coal mine that smoking, family history, asthma, respiratory, allergies are accounting for the major cause of the symptoms.

 

Joseph E. Allman: If you get to invoke the 15 year presumption, then the coal company has to almost rule out that coal dust was a contributor at all to the disability.

 

Alan Pierce: And what’s a form for litigating a claim that is contested?

 

Joseph E. Allman: Well a coal miner files an application of the United States Department of Labor, they then arrange an examination. And that’s one of the issues that we could talk about later if we have time; the doctors that do these examinations, we need more of them. The guy or the coal miner has an examination; the doctor gives an opinion to the Department of Labor. The Department of Labor gives the coal company the opportunity to have the coal miner inspected by their – independently, quote unquote – by their own doctors and then the evidence is put together. The Department of Labor then makes a determination whether the miner’s entitled to benefits.

 

Alan Pierce: Is this done at a claims examiner?

 

Joseph E. Allman: Yes.

 

Alan Pierce: The same claim examiners that might be looking at a postal worker case or a VA worker, or are there special ones designated?

 

Joseph E. Allman: Both of those are Department of Labor but they’re in different divisions. There’s a separate coal mining division of Department of Labor that takes these cases and having done both of these FICA cases and the Black Lung cases are very extremely interesting to me because we seem to be going up against the DOL claims examiners and the FICA cases; and these, they’re on our side. It’s like day and night.

 

Alan Pierce: And past the claims examiner level, do you ever get to an ALJ? That’s an administrative law judge.

 

Joseph E. Allman: Absolutely. And if the coal company – so let’s say that the Department of Labor finds that the miner’s entitled – the coal company has 30 days to either agree pay or to appeal, and that first appeal is to an ALJ hearing. And that’s where a lot of our work is done, really, is at the ALJ level.

 

Alan Pierce: I want to deviate since we just sort of touched upon that and before we get into the benefits and the other entitlements that might flow from the exposure. There’s a legitimate concern right now about funding and having adequate personnel to judicate these cases and that’s affecting timeframes of getting your case heard, getting your case decided or getting your case paid. Give us the update on where we are with that.

 

Joseph E. Allman: Well I probably don’t know the answer to your question but what I see in the cases I’m doing is that a hearing is going to take anywhere from 6-12 months to get set up. And so I’ve only been doing these cases for about 5 years. And I think it’s taking longer. It seems to me that it is taking longer to get a hearing set.

 

Alan Pierce: So what are the different jurisdictions that have coal mining as a part of the industry where these claims might arise?

 

Joseph E. Allman: Alan, the appellation states from Pennsylvania down through Tennessee and northern Alabama, even. Virginia, West Virginia, Kentucky, obviously, and the eastern part of Ohio. Over where I am in Indiana, we have southern, southwestern Indiana and southern Illinois have coal mining. Then out west, there’s some states – there’s four or five states; Utah, Colorado, I think Wyoming, Montana, may have coal mining, actual coal mining. And out west, they have surface mining, most of the underground mining is back east. And that’s an issue inside of our cases. That 15 year presumption we talked about earlier, if you have – the statute says – if you have 15 years of underground mining, or its equivalent. You get the presumption. So some of my cases involve surface mining above ground, strip mining guys, and an initial issue because everybody wants to get the 15 year presumption. It’s really a great way to prove your case. Initial issue is whether or not they were in coal dusty enough work environments to qualify for the 15 year presumption.

 

Alan Pierce: And how has safety and safety equipment, respiratory equipment impacted the practice?

 

Joseph E. Allman: I know from talking to miners – again, this is anecdotal what I know about that – underground, you can’t really run a continuous miner (which is a machine that cuts coal with the face of the vein) you can’t really wear a full body respirator or a completely enclosed respirator of some kind with oxygen. It’s just infusible.

 

Alan Pierce: Again, this may be an off the wall question for you, but I’ve had some experience in Massachusetts with claims involving beryllium powder no longer used. But there was a host of illnesses and deaths, not by the worker exposed to the beryllium powder, but the spouse who might wash the clothes. Ever been any?

 

Joseph E. Allman: There have been. There have been reported cases of spouses who have been exposed for a long time, 35, 40 years, to shaking the dust out of their husbands’ clothes. And that’s interesting that you say that. I think it’s rare. I’ve never had a case, but I’m sure there have been. And part of my proof – I have one of my miners who has done surface mining, to prove that they worked in coal dusty enough environments to invoke this 15 year presumption – I have their wives testify. Because the guys, they’re just covered with coal dust. They change clothes, they shower before they come home; when they come home, they’re still covered with coal dust. And their clothes have to be washed in different washing machines than normal clothes because it’ll tear them up.

 

Alan Pierce: Interesting question I have, I think it’s an interesting question is you mention represent a lot of widows and haven’t had a widower. So proving that the death is related, especially when there is a time gap even if you have the presumption. When somebody dies, they could die from complications from a variety of things and the lungs could be contributing to that. How much of a quantum of proof do you need that the pulmonary condition from coal dust contributed to the fatal episode that could’ve been 20 years after the person last worked?

 

Joseph E. Allman: Well, you’re using the keyword: contribution. The statute says that coal dust has to be the contributing cause of the death. Or, at least, hastened the death. So you’re still going to have some need of a pulmonology and a pulmonologist’s opinion, even if the person suffered a heart attack and died from myocardial infarction. Maybe the person that filled out the death certificate listed CWP or pneumoconiosis as a contributing factor, or maybe they didn’t. In some cases they do autopsies. Autopsy is one form of proof. It’s pretty good proof either way, if he didn’t have a serious level of it.

 

Alan Pierce: Well, we’re going to take a short break and when we come back we’re going to continue our discussion with Joseph Allman about the Black Lung Benefits and we’ll talk about what benefits might be available. We’ll be right back.

 

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Alan Pierce: Welcome back to Workers Comp Matters, and our guest Joseph Allman, we’re talking about the Black Lung Benefits Act and claims under that system of workers comp benefits. Joe, we were talking about the quantum of proof that you need and the presumptions. So let’s assume a miner becomes disabled; what are the benefits that are available?

 

Joseph E. Allman: Well first of all, there’s a medical card. They get a medical card from the Department of Labor to pay for any medicals needed. Any related treatments, examinations, what have you. Monetarily, it doesn’t pay a lot compared to some statutes. For one person, if you’re just an individual with no dependents, you get, I think $630 a month, roughly. That’s not really a big benefit. Husbands and wives about $938, roughly. Don’t hold me to those numbers.

 

Alan Pierce: You have to actually be suffering a wage loss or do you get that benefit just as a result from having it?

 

Joseph E. Allman: You get that as a result from having it.

 

Alan Pierce: So you could be full-time employed in another field.

 

Joseph E. Allman: Well, you wouldn’t be able to be full-time employed because you have to have a pulmonary disability that precludes you from performing your last coal mine work. So it’s not impossible, you could have a job of some kind, I suppose. I haven’t had any clients in that situation though where I’ve had to think about that.

 

Alan Pierce: Is the death benefit for the surviving spouse and or children the equivalent monthly benefit or is it different?

 

Joseph E. Allman: Yes, it’s equivalent.

 

Alan Pierce: Cost of living adjustments?

 

Joseph E. Allman: Yes, cost of living adjustments, yes.

 

Alan Pierce: How does a lawyer get compensated for these cases?

 

Joseph E. Allman: Well this is very interesting, it’s kind of a neat statute. The coal miner never pays the attorney a penny. And so, we don’t get paid any fees unless we win, so we’re highly motivated in the cases – of course, we try to only take good cases. The attorney can have the miner pay expenses, so that’s something you can do. But if you file an attorney fee petition, if you are successful in your case. Let’s say you just had the determination by the Department of Labor and the coal mining company agrees to pay. Well that person probably didn’t even have an attorney yet. Most of them come to me when they’re going to have a hearing. They’re going to have a hearing because the coal companies appeal and they’re going to a hearing. So we go to a hearing, we have to prevail and we have to win. Now if the coal company – if they lost the hearing – they could also go to the Benefits Review Board in Washington, D.C., and that takes some 6, 8, 10, 12 months for that to come back down, it could be reprimanded for another hearing. Ultimately, you could go to – whatever geographical area you live in – your United States Court of Appeals.

 

Alan Pierce: Is there apportionment or is it the last employer under the success of insurer rule? A coal miner might work for half a dozen or more employers over the 15 plus years. How do you deal with that?

 

Joseph E. Allman: That’s a great question and it’s the last mine, the last employer they worked for, for one year. It’s called the responsible operator, the RO. There’s sometimes a fight in these cases. I don’t know why, but it is. It seems pretty clear where you worked, right?

 

Alan Pierce: I agree with you. I have been involved in other cases – both asbestos and accumlative trauma cases – where it’s very difficult to find out who that last employer was; especially if you’re working out of a union shop and you’re going from employer to employer and they may have different insurance carriers depending on each job. It’s a monster just to find out who your defendant is nevermind proving your case. At this point, I’m going to change gears and put you on the spot if you don’t mind – you’re a lawyer, you’re used to that. We have a feature here called Case of the Day where I’m going to describe an interesting case and ask you how you think it came out. And this case comes from the state of Montana. Are there coal mines in Montana? This is not a coal case.

 

Joseph E. Allman: I think they have strip mines. But this is not a coal case.

 

Alan Pierce: This is not a coal case, this is a bare case. This is the case of poor Mr. Hopkins against the Uninsured Employers Fund. Brock Hopkins worked at a private amusement park called the Great Bear Adventures in Montana. There were issues about whether he was an independent contractor or employee. We’re assuming he’s an employee, that was one of the issues. Part of his job was to feed the bears and perform maintenance duties and the bears go on hibernation, the park is only open until Labor Day. But somehow in early November, he got mauled by a bear, a grizzly. And his claim was that he was going in to feed the bear. And after they extricated him from the bear and he was still breathing and he was taken to the hospital, he both admitted to – and it was shown by evidence – that he had been smoking marijuana before going into the house of the bear. And the issue is whether under those circumstances he would be entitled to recover workers comp benefits.

 

Joseph E. Allman: Oh, that’s a fantastic question, what a scenario. Well, what does the statute say? Let’s look at the statute first. Is there any preclusion for under the influence in the statute? I know that in our state of Indiana for workers compensation benefits, that under the influence is one thing that will get you denied benefits.

 

Alan Pierce: Well that is what the position was of the employer and the uninsured trust fund, and you got to it to a point. And when you do get into jurisdictions where there is a prohibition or a bar, is one further step, and that is whether you can prove that it contributed to the injury. And in upholding the award of benefits, the Montana Supreme Court said the use of marijuana was mind-boggling stupid. But the evidence was it had nothing to do with being mauled by the bear. That a bear is an equal opportunity mauler, and he could have been stoned sober or sober stoned and it didn’t matter. Although part of their argument was that smoking the marijuana may have impaired his judgement for going in there, but there was no proof that having smoked marijuana contributed to being mauled by the bear so he did recover benefits. But you’re right, there are some jurisdictions that have the intoxication defense where simply the act of intoxication will nullify it. Even if you’re drunk and something falls of a building and you’re standing next to the guy that isn’t drunk and you both get killed, it’s unfortunate, but there are states where once that defense is raised, then there’s the burden to show that it contributed to it. Fortunately, well there’s not much fortune about it for Mr. Hopkins, but fortunately the Montana State law was that they had to prove that the pot contributed and it did not and so he recovered. Joe, thank you very much for being a guest on Workers Comp Matters, telling us a little bit about Black Lung disease and thank you for all the work you do for your clients.

 

Joseph E. Allman: Alan, it’s been my pleasure, thank you.

 

Alan Pierce: And thank you all for listening to Workers Comp Matters and go out and make it a day that matters.
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