3:23pm

Sun October 16, 2011
Statehouse News

Ruling on Black Lung Statute to Come

Tom Springer argues that coal miners seeking compensation for black lung disease should be treated no differently than other workers who have the disease.  The Madisonville attorney has presented oral arguments before the Kentucky Supreme Court, which should decide within the next few months whether the Court of Appeals was correct in finding the current black lung statute unconstitutional.

“The main issue for the court is whether or not there is a rational basis between treating coal miners differently with pneumoconiosis claims as opposed to workers who suffer pneumoconiosis through other occupational particulate,” said Springer.

There’s a series of steps coal miners follow in order to file a claim for black lung benefits. The miner must first get an X-ray from a certified doctor, he said.

The miner may file a claim if the reading comes back a category 1.0 or higher, but the miner’s employer also has the right to get a separate reading, Springer said. If the X-ray comes back negative or if the reading is not within one degree of the miner’s initial one, the matter goes before a consensus panel.

The panel consists of three physicians hired by the state. If two out of three doctors form a consensus opinion, it is then upheld, Springer said.

Springer represented a client who had two positive readings from two doctors, but to different degrees. A panel reviewed the readings and the consensus came back negative, so Springer’s client was denied his claim.

He appealed the case and eventually the state Supreme Court decided in March 2009 that if both the worker’s and employer’s readings are positive, it doesn’t need to go to a consensus board.

Springer filed appeals involving similar cases for clients Jesse Gardner of Webster County and Joe Martinez of Hopkins County.

With these two cases, Springer has argued that a consensus panel violates equal protection rights, because other workers who inhale particulates are not subjected to the same process. “There is no rational reason to treat coal miners with pneumoconiosis claims differently than non-coal workers with pneumoconiosis claims,” he said. The state Court of Appeals agreed and ruled in April 2010 in his favor. Now the matter is before the Supreme Court, who heard oral arguments from Springer and attorneys representing coal companies on whether the black lung statute is constitutional.

“The problem with the current statute is coal miners have to face the highest burden of proof of any worker in the state,” Springer said.

The National Institute for Occupational Safety and Health has released data indicating black lung disease is on the rise. However, the rate for black lung claims in Kentucky is 8.5 percent, which doesn’t correlate with the realities of the disease, he said.

Springer said he’s hopeful the state Supreme Court will agree with the Court of Appeals and rule the current statute unconstitutional.

“It would make a big difference for, not just the clients in the appeal, but coal miners going forward who suffer from the disease,” he said. “Because clearly there’s a lot more miners suffering from the disease than awarded benefits.”