At first glance, you would think federal black lung litigation would proceed like all other litigation. However, black lung litigation is upside down, in that the Defense often bears the burden of proof and must disprove the claimant’s entitlement to benefits.

In a black lung litigation case, the miner must prove four things:

• That he has black lung
• That his black lung arose out of occupational coal dust exposure
• That he is totally disabled
• That his disability arose from occupational coal dust exposure

However, when you get into the heart of the Black Lung Benefits Act, you will discover that the miner rarely has to meet this burden of proof.

The claims that we most frequently encounter are where the burden shifting presumption attaches and the defense is forced to prove that claimant is not entitled to benefits.

A Remedial Purpose and a Burden-Shifting Presumption

In 1969, Congress enacted the Black Lung Benefits Act (BLBA) as a remedial measure ensuring coal miners totally disabled from black lung, would receive life-long wages and benefits. With the remedial nature of the Act, Congress added an irrebuttable presumption and a burden shifting presumption into the language of the statutes to make it easier for a miner to be awarded benefits. In 1978, Congress also broadened the definition of pneumoconiosis to diseases beyond what the medical community had recognized as “black lung” to any respiratory impairment that arose out of or was exacerbated by occupational coal dust exposure.

In the 1980s, the burden shifting presumption was removed, but later restored through the Byrd Amendments to the Affordable Care Act in 2013. The presumption, as enacted there, makes the coal mine operator and the insurance carrier responsible for proving that the miner does not have either traditional or “legal” black lung or that the miner’s disability did not arise out of pneumoconiosis. In essence, the defense is responsible for proving at least one negative, often an impossible task. Additionally, the defense is also required to “rule out” the possibility that miner has any form of black lung or that his disability arose out of coal dust.

As a result, many claimants are awarded benefits if they can demonstrate any respiratory impairment, regardless of the cause of the impairment.
The simplest way to deal with this is to verify the length of the coal mine employment and see if it is shorter than what the miner or others believe it to be. The other option is to dispute the disability and prove a negative as discussed below.

The Impairment:

As noted above, most of the time, the miner is responsible for proving only the issue of total disability. Presumptions take care of the rest. The burden-shifting presumption entitles the claimant to two rebuttable presumptions:

1. The miner has some iteration of black lung
2. The miner’s disability arose out of black lung

The issue of causation of black lung is dealt with a different presumption that the black lung was caused by occupational coal dust exposure if the miner has a proven ten years of coal mine experience.

How is a miner determined to be disabled? The US Department of Labor (USDOL) sends and pays for the miner to undergo a pulmonary function test or an arterial blood gas study administered by the facility or doctor chosen by the claimant, usually through the advice of counsel or representative. USDOL regulations outline that a miner is totally disabled if the miner achieves certain values specifically outlined in the regulations. The Regulations also provide that an opining physician may assert that a miner is totally disabled, based on observed symptoms or the objective testing and the physician’s opinion that the miner cannot perform his last job. These opinions vary wildly.

The results of testing dictate the rest of the claim. If the testing is not qualifying, but the examining physician still opines that the miner is totally disabled, then the USDOL will often accept the opinion as fact. At that point, the credibility of that opinion is a factor and the physician’s understanding of the miner’s past work and medical history are relevant.

Additionally, there are often issues with the testing that the opining physician relies on regarding validity. This becomes extremely technical and requires a defense counsel and medical experts working together to refute the information that the USDOL and the claimant might develop.

It is critical to have an experienced defense counsel to clearly show expert witness commentary and factual information that bolster the case.

The Rebuttal:

As noted above, the only way that the defense can overcome the burden shifting presumption is to prove that occupational coal dust exposure could not have possibly contributed to the miner’s breathing impairment or that the miner’s disability did not arise out of black lung. This is a call to prove a negative, which is virtually impossible.

The application of the presumption is so sure that miners’ counsels begin by arguing the presumption and simply stating that the defendants cannot rebut the presumption. Most successful claims often involve this presumption. While we have seen times in which it has been accepted that the miner’s breathing impairment was caused by something else, it has been few and far in between.

Conclusion:

Black lung cases are complex and lengthy with a variety of technical regulations and considerations that make them uphill battles.

Having an experienced attorney can greatly reduce risks and exposure and provide a robust defense.

We welcome you to reach out should you need any assistance in dealing with these types of cases.