October 11, 2011
Suzanne Bailey—Senior Attorney
Perhaps the only provision of the Patient Protection and Affordable Care Act ("PPACA"), Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010), not to have received widespread attention is a provision amending the Black Lung Benefits Act ("BLBA"), 30 U.S.C. §§ 901-944, to effectively reinstate the right of survivors of miners who died disabled by pneumoconiosis, or black lung disease, to collect derivative benefits under certain conditions, a right which was abolished in 1981.
The black lung benefits program was enacted originally as Title IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), 83 Stat. 792, 30 U.S.C. § 901 et seq., to provide benefits for miners totally disabled due at least in part to pneumoconiosis arising out of coal mine employment, and to the dependents and survivors of such miners.
Pauley v. BethEnergy Mines, Inc. , 501 U.S. 680, 683-84 (1991) (emphasis added). Congress amended Title IV of the FCMHSA in 1972—at which time it was redesignated as Title IV of the BLBA—and again in 1977, in an effort to liberalize the statutory criteria for entitlement to benefits. Id. at 685-89. In particular, the 1972 amendments added BLBA § 411(c)(4), 30 U.S.C. § 921(c)(4), which created a "fifteen year presumption"—for miners' claims, but not for survivors' claims—that a miner who had been employed for at least 15 years in underground coal mines and who had suffered from a totally disabling respiratory or pulmonary impairment was rebuttably presumed to have been totally disabled by pneumoconiosis, to have died due to pneumoconiosis, and to have been totally disabled by pneumoconiosis at the time of his or her death. 501 U.S. at 686. The 1977 amendments added BLBA § 422(l), 30 U.S.C. § 932(l), which provided: "In no case shall the eligible survivors of a miner who was determined to be eligible to receive benefits under this title at the time of his or her death be required to file a new claim for benefits, or refile or otherwise revalidate the claim of such miner." Pub. L. No. 95-239, 92 Stat. 95, § 7(h) (Mar. 1, 1978). The addition of this language gave survivors an additional path to benefits besides proving that the miner's death had been due to pneumoconiosis or that the miner had been totally disabled by the disease at the time of death; survivors were automatically entitled to "derivative benefits" if the miner had been awarded black lung disability benefits during his or her lifetime. See Pothering v. Parkson Coal Co., 861 F.2d 1321 (3d Cir. 1988).
What Congress gave in the 1972 and 1977 amendments to the BLBA, Congress took away in 1981 amendments to the Act. Section 422(l), 30 U.S.C. § 932(l), was amended to add the following language: "except with respect to a claim filed under this part on or after the effective date of the Black Lung Benefits Amendments of 1981." Pub. L. No. 97-119, 95 Stat. 1635, § 203(a)(6) (Dec. 29, 1981). In addition, the amendments eliminated certain statutory presumptions, including the 15-year presumption, id. § 202(b)(1)–(2), and foreclosed the ability of survivors to obtain benefits by proving that the miner had been totally disabled at the time of death, id. § 203(a)(4). These amendments changed the law in two fundamental ways for survivors: "[F]irst, they made clear that a miner's survivor would now have to prove that the miner's death was caused by pneumoconiosis; second, they made explicit that the new evidentiary requirements would apply only to those . . . miners' survivors who filed claims after the 1981 amendments became effective." Pothering, 861 F.2d at 1327.
In a few short sentences, the PPACA struck the 1981 amendments with respect to claims filed after January 1, 2005 that were still pending on or after March 23, 2010. Section 1556 of the PPACA provides in its entirety:
(a) REBUTTABLE PRESUMPTION.—Section 411(c)(4) of the Black Lung Benefits Act (30 U.S.C. 921(c)(4)) is amended by striking the last sentence.
(b) CONTINUATION OF BENEFITS.—Section 422(l) of the Black Lung Benefits Act (30 U.S.C. 932(l)) is amended by striking ", except with respect to a claim filed under this part on or after the effective date of the Black Lung Benefits Amendments of 1981".
(c) EFFECTIVE DATE.—The amendments made by this section shall apply with respect to claims filed under part B or part C of the Black Lung Benefits Act (30 U.S.C. 921 et seq., 931 et seq.) after January 1, 2005, that are pending on or after the date of enactment of this Act.
PPACA § 1556, 124 Stat. at 260. "Section 1556 of the PPACA amended the BLBA by resurrecting . . . the '15-year presumption' and making it applicable to claims filed after January 1, 2005, that were still pending on or after March 23, 2010." Keene v. Consol. Coal Co., 645 F.3d 844, 847 (7th Cir. 2011).
The revival of the availability of derivative benefits after more than 20 years raises many questions. Initial decisions on the propriety of retroactivity have favored the retroactive application of the amendments. In Keene, the Seventh Circuit Court of Appeals rejected the assertion of the coal mine operator-employer that the retroactive application of the 15-year presumption to survivors' claims violated due process and was an unconstitutional taking. Id. at 849-51; see also Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479 (6th Cir. 2011) (reversing decision of the Benefits Review Board ("BRB") denying the miner's application for benefits and remanding for application of the 15-year presumption resurrected by the PPACA). Likewise, in two decisions, the BRB, the administrative board that hears administrative appeals of black lung decisions, has reached the same conclusion with respect to the retroactive application of the continuation-of-benefits amendment to § 932(l) to claims filed after January 1, 2005. Stacy v. Olga Coal Co., BRB No. 10-0113 BLA (Dec. 22, 2010), http://www.dol.gov/brb/decisions/blklung/published/10-0113.htm; Mathews v. United Pocahontas Coal Co., BRB No. 09-0666 BLA (Sept. 22, 2010), http://www.dol.gov/brb/decisions/blklung/published/09-0666.htm. Both Stacy and Mathews are currently pending before the Fourth Circuit Court of Appeals. Stacy is scheduled for oral argument on October 25, 2011. Oral Argument Notification, Stacy v. Olga Coal Co., No. 11-1020 (4th Cir. Aug. 22, 2011.) Mathews is being held in abeyance, pending a decision in Stacy. Order, Mathews v. United Pocahontas Coal Co., No. 11-1620 (4th Cir. June 28, 2011).
Another question presented is the eligibility date for an award of survivor's benefits brought under the PPACA amendments. The relevant Regulation states that "[b]enefits are payable to a survivor who is entitled beginning with the month of the miner's death, or January 1, 1974, whichever is later." 20 C.F.R. § 725.503(c). Because the Regulations specifically state that "[t]here is no time limit on the filing of a claim by the survivor of a miner[,]" id. § 725.308(a), it is not inconceivable that a survivor who never attempted to establish benefits following the 1981 amendments could now file for benefits, under the PPACA amendments, based on a miner's death as far back as 1982. Will the Office of Workers' Compensation Programs ("OWCP") of the Department of Labor apply section 725.503(c) across the board, or will the OWCP promulgate Regulations that limit the right of survivors who sat on their hands to recover derivative benefits under the recent amendments?
What about survivors who unsuccessfully attempted to prove eligibility under the 1981 amendments and who then file a subsequent claim under the PPACA amendments? Under the current Regulations, the survivor is not entitled to benefits "for any period prior to the date upon which the order denying the prior claim became final." Id. § 725.309(d)(5). Is it fair that a survivor who made no effort to seek benefits during the time when the 1981 amendments were in effect should be awarded benefits going back to the date of the death of the miner, while the recovery of a survivor who diligently pursued his or her rights during that period but was not successful until the filing of a subsequent claim under the PPACA amendments should be limited to a period going back no further than the date denying the prior claim? Hopefully these and other questions will be resolved by the promulgation of new Regulations enforcing the amendments.