Presumptions and History

This is about presumptions, and you've read my take on presumptions in the past...

Union Carbide Corp. is challenging a new line of case law at the U.S. Circuit Court of Appeals for the 4th Circuit, which is allowing deceased miners’ spouses a second chance to obtain survivors benefits under the Black Lung Benefits Act.

In Richards v. Union Carbide Corp. the Benefits Review Board (BRB) allowed Virginia Richards to pursue a survival claim filed in 2009.

Richards is the widow of Arlie Richards, a miner who had been diagnosed with pneumoconiosis and received benefits under the Black Lung Benefits Act while still alive. After Arlie's death, Virginia filed her first claim for survival benefits, but it was denied in 2006.

She filed a new survival claim in 2009, shortly before the passage of the Affordable Care and Patient Protection Act. The Benefit Review Board's Jan. 9 decision essentially allows Virginia, and other claimants similarly situated, to pursue what attorneys are calling a "subsequent survivors' claim."

The appeal is the latest piece of litigation emanating from the Affordable Care Act changes to the Black Lung Benefits Act, under a provision known as the "Byrd Amendment."

The amendment, which is named after the late U.S. Sen. Robert Byrd (D − W.Va.), restored a presumption that coal miners who worked at least 15 years in underground or comparable surface mines and who suffered a totally disabling respiratory disease are entitled to Black Lung Benefits.

The Byrd amendment and several federal appellate court rulings entitle a dependent to automatic survival benefits, as long as:

• The original miner was eligible to receive benefits under the Black Lung Benefits Act.
• The survivors' claim was filed after Jan. 1, 2005.
• The survivors' claim was pending on or after March 23, 2010, the date the PPACA was approved.

The BRB rejected Union Carbide's argument that the Byrd Amendment was unconstitutional because of a denial of due process rights.

BRB also rejected the employer's res judicata argument, concluding that the Affordable Care Act created “a new cause of action” for miners' survivors, and that Richards' latest claim was a new cause of action.

Noting that the administrative law judge’s Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law, the BRB said that the Byrd Amendment created a “change” by establishing a new condition of entitlement that is wholly independent of the miner’s cause of death, and that justifies, for a limited class of survivors, application of the presumption to a subsequent claim; because Richardson was asserting a claim that was not in existence at the time of the original denial, because the Byrd Amendment had not existed at the time of that denial, it was a new claim as far as the BRB was concerned.

Review Board member Judith Boggs dissented, stating nothing in the legislative changes called for previously-denied claims to be disturbed or revived.

Richardson's attorney said that the BRB's rulings in these cases should not come as a surprise to the mining industry, as the Affordable Care Act simply restored an automatic entitlement that had existed before 1981.

Presumption cases are statutory creatures of political negotiation; they always seem to make interesting case law/stories but in the end it really comes down interpretation.

The BRB said in its opinion that, "The statute makes no distinction between those who previously filed a survivor’s claim and those who had not; their entitlement to benefits is the same. They are, therefore, equally entitled to a continuation of black lung benefits, uninterrupted by a prior decision denying survivor’s benefits."

A footnote to the dissent, in my opinion, affirms the interpretation taken by the majority, noting that in the past a huge backlog of claims were being held up - clearly the presumption was intended to tell mining companies, "you lose":

"[A] very useful purpose was, and is, served by relieving surviving dependents of the burden of successfully negotiating their way through a process that significantly delays receipt of benefits on which they depend. At the time that the 1978 legislation was being considered, Senator Hatch stated, with respect to claims filed under the Act, that:


Out of approximately 109,000 claims filed, 4,100 have been approved and 56,000 have been denied. The remaining 49,000 undecided claims form the backlog resulting in large part from an average claim processing time of 630 days. Of the claims approved, coal operators are paying only 200; the industry is controverting 97 percent of the claims for which a responsible operator [has] been identified by the Secretary of Labor."

The BRB is clearly cognizant of the mining industry's past and isn't going to let this happen again. Whether the 4th Circuit agrees will remain to be seen.