Labor Department wins Byrd black lung rule case

November 3, 2011 by Ken Ward Jr.

Sen. Robert Byrd, D-W.Va., questions panel members on Capitol Hill in Washington, Thursday, May 20, 2010, during the Senate Health and Human Services subcommittee hearing on mine safety. (AP Photo/Carolyn Kaster)

This just in from the Department of Labor:

The U.S. Department of Labor’s Office of Workers’ Compensation Programs has successfully defended a recent amendment to the Black Lung Benefits Act contained in the Patient Protection and Affordable Care Act. The U.S. Court of Appeals for the 3rd Circuit held in “B & G Construction Co. v. Campbell and Director, Office of Workers’ Comp. Programs” that the amendment is constitutional and provides benefits to certain survivors of miners who were entitled to benefits at the time of their deaths.

“This ruling supports our administration of the Byrd amendments in the Patient Protection and Affordable Care Act,” said OWCP Acting Director Gary A. Steinberg. “We are committed to providing the benefits that claimants are entitled to under the law — benefits that so many workers and families depend on when black lung has taken away their health and livelihoods.”

The Black Lung Benefits Act provides compensation to miners totally disabled by pneumoconiosis, commonly called black lung disease, and their eligible survivors. From 1982 until the PPACA amendment was enacted on March 23, 2010, a survivor, usually the miner’s spouse, had to prove that pneumoconiosis caused the miner’s death to be entitled to benefits, even if the miner was receiving benefits when he died. But the 3rd Circuit held that the PPACA amendment automatically continues benefits to a miner’s eligible survivors if the miner was entitled to benefits prior to death. The court rejected B & G’s contention that the amendment is unconstitutional under the due process and takings clauses of the Fifth Amendment.

The amendment applies to claims filed after Jan. 1, 2005, that were pending on or after March 23, 2010. In this case, the deceased miner had worked for B & G for more than 16 years. Because the miner was totally disabled due to pneumoconiosis, he received disability benefits until his death in 2005. Under the PPACA amendment, the court ruled that his surviving spouse is automatically entitled to continuing benefits.

Readers may recall that this amendment from Sen. Robert C. Byrd generated a lot of heat in the  months immediately prior to the senator’s death last summer, when business interests and certain members of the media went after the proposal pretty hard. Labor Department officials responded at the time (subscription required) that the potential costs were being blow way out of proportion.

You can read the court ruling, which actually came out last week, here. The decision, concerning a dispute between a miner’s widow named Norma G. Campbell and a company called B&G Construction, does address the controversy over the potential costs of the amendment, in this way:

B&G places most of its Takings Clause argument on the economic impact that it contends amended section 932(l) will have on it in particular and the coal industry in general. Specifically, B&G argues that application of amended section 932(l) to provide benefits in cases such as Campbell’s would impose a considerable financial burden on the coal industry inasmuch as that “financially strapped” industry would have to pay an estimated $210 million in benefits, the justification for the requirement of which is unsupported by adequate medical evidence and, further, that retroactive application of the amendment will require a lump sum payment of approximately $1 billion dollars.  B&G arrives at the $1 billion dollar figure by taking the GAO’s estimate in the 1980 report that companies paid $312.9 million dollars in lump sum payments on a retroactive basis and, because benefit rates now are three times higher than in 1977, extrapolating that the retroactive cost of amended section 932(l) will be approximately $1 billion.

As the director points out, however, the economic impact analysis is not simply an exercise in comparing the cost of a regulation against a regulated entity’s ability to bear the cost. Thus, we have held that even if an economic regulation caused the complete destruction of a company, the occurrence of that consequence would not serve as proof that the regulation effectuated an unconstitutional taking under the Fifth Amendment.

Rather, the touchstone of the economic impact question is proportionality: “the size of a liability only weighs in favor of finding a taking insofar as it is out of proportion to the legitimate obligations society may impose on individual entities.”

And in a footnote, the ruling said:

Furthermore, even if this was the proper inquiry, B&G provides no support for its assertion that the coal industry is “financially strapped,” and does not provide any indication of its own inability to bear the extra cost of increased benefits under section 1556. Moreover, it is not clear that it would be proper, in this context, to rely on financial projections based on 30-year old data.

Back when Sen. Byrd’s amendment first passed, United Mine Workers President Cecil Roberts said:

It’s important for everyone in the coalfields to realize what these amendments mean – and what they do not mean.

They mean that if a miner can prove that he has a totally disabling lung disease and that he worked in the mines for 15 years, then the presumption is that he got this disease because of his employment and is entitled to black lung benefits.

The burden of proving otherwise is then on the company, which is where it should be. As Sen. Byrd has pointed out, if a company did not take the proper and legally-required steps to protect its employees from too much exposure to respirable coal dust, then by all that is fair and right it has the responsibility to compensate that miner.

I’ve seen press reports indicating that the coal industry and its corporate allies are upset about this. While that comes as no surprise, the arguments they use to attack Sen. Byrd and his work to restore fairness to this process are both surprising and misleading.

These corporate mouthpieces neglect to point out that, to get these benefits, miners have to prove they have totally disabling lung disease. Nor will they say that companies have the ability to challenge whether or not that disease is indeed black lung or is caused by other factors.

And their attacks on widows are even more disingenuous. Here are the facts: Prior to the Reagan administration, when a miner who was totally disabled from black lung and was receiving federal black lung benefits died, his widow was able to keep those benefits. Reagan changed that, and made widows prove, once again, that the death was caused by black lung.

What Sen. Byrd has done is take the language back to what it was before Reagan took an axe to widows’ benefits. Let’s not forget that black lung is a fatal disease. There is no cure. If a miner was already receiving black lung benefits, he was going to die from black lung. If he should happen to die in another manner, that fact remains unchanged and his widow is still entitled to benefits.

 

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