ANALYSIS OF STATE-BY-STATE BLACK LUNG STATUTES OF LIMITATIONS AND RECOMMENDATIONS FROM A COAL MINER’S DAUGHTER

I. History of Miners’ Safety and Health Concerns

America’s history of coal mine safety is gruesome to say the least. As early as the 1840s, coal mining has been an industry that has provided energy for the country at a heavy price.^[1] This important commodity has come at the cost of coal miners’ health, and in many cases, their lives.^[2]

On April 5, 2010, an explosion at the Upper Big Branch Mine, a mine in the heart of West Virginia’s coal country, killed 29 miners.^[3] The explosion occurred after a buildup of methane gases due to poor ventilation within the mine.^[4] Massey Energy, the operating company, accumulated more than 1,100 safety violations in the past three years leading up to the incident.^[5] Such disasters have been relatively frequent in the United States and continue even today.^[6] According to Mine Safety and Health Administration data, 37 miners have died in work-related accidents this year; an uptick from the past four years, where an average of 28 miners had died.^[7] Even more lethal, however, are the lingering health detriments that follow miners from their work place.

Aside from mining accidents, present-day miners are often put in difficult working conditions that can threaten their life. Some miners work consecutive ten day shifts and can “be on” from up seven to twelve hours a day.^[8] Some mines are situated in “low coal,” meaning the roof of the mine is shorter, which is as low as three feet in certain instances.^[9] The low height of coal mines can negatively affect miners’ back and spinal health, lead to forced time off due to injury, and hinder mobility for the rest of their lives.^[10]

Toxins, the most health damaging substances, are found inside and outside of mines, as well as in coal preparation plants and coal trucks.^[11] Considering coal is a fossil fuel resource, Methane gases are abundant in mines, which can lead to carbon-monoxide poisoning.^[12] However, MSHA requires mines to ventilate oxygen throughout the mine to counteract the threats of carbon-monoxide poisoning.^[13] The overall lasting damage to miners derives from inhaling coal dust and silica for a great amount of time.^[14] Such inhalation, at the very least damages miners’ respiratory system and in many cases causes miners to develop Chronic Obstructive Pulmonary Disease (COPD) or Coal Workers’ Pneumoconiosis (“black lung disease” or CWP).^[15]

The legal issue presented in this note includes a state-by-state analysis of laws regarding CWP, and its effect on retired coal miners. More specifically, the analysis will focus on the statute of limitations imposed on workers’ compensation claims alleging disabilities due to CWP. The states considered include West Virginia, Pennsylvania, Kentucky, and Virginia. The states mentioned are due to their location within the Appalachian region, where most coal mining in the United States takes place. Further, this analysis will consider CWP laws at the federal level under the Federal Black Lung Act (FBLA). Lastly, this note will emphasize and suggest the best statute of limitation law recommendations regarding this issue. The analysis will be done through the perspective of miners, who have already sacrificed so much for their careers and families.

II. Medical Description of Black Lung Disease and Its Effects on Miners’ Health

To fully appreciate the struggle miners face to survive, it is necessary to explain CWP and its effect on miners. This overview further explains how CWP relates to miners’ occupation, rightfully leaving their employer liable for such workplace injuries.

Scientifically, black lung disease begins when coal and rock dust accumulate in miners’ lungs and form macules.^[16] At this early stage, miners are said to suffer from “simple” CWP, which is associated with milder symptoms.^[17] As the disease continues, macules combine and form into nodules, or small holes in the lung.^[18] If these holes grow large enough (anywhere from 1-2 centimeters), miners develop progressive massive fibrosis (PMF), known as “complicated” CWP.^[19] If nodules continue to grow, black lung can be lethal, especially if miners are not able to obtain a lung transplant.^[20]

Black lung disease stems from coal dust accumulated through years of working in a coal mine.^[21] While many coal miners do not experience symptoms for years, damage is still being done to their lungs.^[22] Often, coal miners hear about the possibility of having black lung disease first at a doctor’s appointment.^[23] Doctors can diagnose black lung by reading an x-ray or CT scans of a miner’s chest.^[24] Small holes in the reading signify the disease is present, and the larger holes signify severe damage for the miner.^[25]

Life with black lung disease becomes a constant struggle for retired miners because they must fight for each breath they take.^[26] The most common symptoms they experience include shortness of breath, cough, sputum, and general immobility.^[27] Miners suffering from black lung disease are often unable enjoy their retirement, as it is hindered by countless doctors’ appointments and the inability to “keep up” with healthier family members.^[28] One thousand miners die from black lung disease each year,^[29] making black lung disease deadlier than any other disease contracted from this employment.^[30]

III. Comparison of State Black Lung Claims

Miners can receive state-issued monetary compensation for life-lasting workplace injuries.^[31] Under state law claims, which are filed as workers’ compensation claims, miners must prove: (1) the existence of pneumoconiosis; (2) the connection of the pneumoconiosis arising out of coal mine employment; (3) the miner is disabled from a respiratory or pulmonary condition; and (4) the contribution of pneumoconiosis to the total disability.^[32] The difference between state and federal claims are the benefits and statutes of limitation; compensation claims are paid in lump sums rather than monthly payments and the varying statute of limitations have a cap on the number of times a miner can file for benefits.^[33]

It is common among states that miners do not have an unlimited number of attempts to secure state black lung benefits.^[34] Considering black lung disease is a progressive disease, limited filings combined with restrictive statute of limitation laws can become detrimental to miners.^[35] Therefore, if miners do not have fully developed symptoms at the time they file, they could be barred from receiving benefits. Different states within the Appalachian region not only approach black lung differently, but none of them give miners the options necessary to ensure benefits are always accessible to those who need them.

A. West Virginia

By no surprise, West Virginia is the state with the most black lung filings per capita; it is the only state fully emersed in the coal mining region.^[36] Further, coal mining is West Virginia’s primary employment industry, employing more people than any other private industry within the state.^[37] This said, state black lung laws are of great importance and have a significant affect on the lives of many West Virginians and their families.^[38]

The statute of limitations for workers’ compensation claims in West Virginia have been the subject of recent controversy within the state’s Supreme Court.^[39] An investigative report revealed that, in 2017, the West Virginia Supreme Court misappropriated 3.2 million dollars on lavish spending for their private offices, leading to the impeachment of all but one of the state’s five Justices.^[40] As a result, four new Justices were elected, each with no judicial experience prior to their elections.^[41] This inexperience, arguably, led to an interpretation of West Virginia’s statute, W.​Va. Code §23-4-15(b) (2017), controlling black lung statute of limitations, which hurt miners’ chances of ever obtaining workers’ compensation from this debilitating disease.^[42]

The West Virginia Supreme Court heard Pennington v. West Virginia Office of the Insurance Commissioner in 2018, which dramatically altered the state’s statute of limitations for black lung claims.^[43] W.​Va. Code § 23-4-15(b), states non-death claims must be filed within two time limitations: (1) within three years of the date of the miner’s last exposure to coal dust (presumably their last day of employment) or; (2) within three years after a diagnosed impairment resulting from black lung disease.^[44]

In Pennington, the claimants filed an initial claim within the first prong of the statute of limitations.^[45] However, because black lung is a progressive disease, their symptoms were not advanced enough to qualify for benefits. Consequently, the West Virginia Occupational Pneumoconiosis Board (WVOPB) denied their claims.^[46] Each of the claimants subsequently filed again, asserting that because they filed once under the first prong and were denied, they could file at any time until a physician believed that an impairment existed.^[47] The second prong would delay their opportunity to file for three years.^[48] This interpretation of the statute is similar to the federal black lung laws, which give miners unlimited opportunities to file once they have been denied.^[49]

The miners’ employers argued that all subsequent claims after a denial filed under the first prong, within three years of the date of last exposure, must continue to be made within three years of the date of last coal dust exposure.^[50] This argument was upheld by the majority opinion, written by newly elected Justice Tim Armstead.^[51] Justice Armstead stated that allowing miners to file indefinitely under the first prong of the statute would lead to the “filing of numerous, duplicate claims, unsupported by any evidence, which would excessively burden the work of the Occupational Pneumoconiosis Board.”^[52] Armstead also explains that miners may continue to file under the second prong, three years after a diagnosis of impairment resulting from black lung; however, there are strict limitations of the amount of times a miner can file his claim.^[53] The Pennington ruling precludes miners from filing outside the statute of limitations.^[54] Nevertheless, in many circumstances, that is when their symptoms would develop to an extent that they could obtain benefits.^[55]

Justice Margaret Workman, writing for the dissent, argued that multiple claims have always been the “nature of the [black lung] beast,” and that limiting miners from filing such claims serves a disservice to an occupation that given so much to the state of West Virginia.^[56] Justice Workman concludes, stating that the majority used its interpretation of the controlling statute to create a “new, substantive, threshold evidentiary requirement for subsequent claims.”^[57]

West Virginia’s new laws regarding statute of limitations for black lung claims are needlessly burdensome on the state’s miners. Before the WVOPB review, initial medical consultations for CWP were compensated, and claimants never bore the burden of paying.^[58] In fact, under W.​Va. Code § 23-4-8(a), “it is and has been the function of the [WVOPB] to determine all medical questions relating to cases of compensation for occupational pneumoconiosis.”^[59] Given this statutory responsibility, the majority opinion in Pennington seems to have missed the mark on complying with state laws due to discussions focused on reducing WVOPB burdens.^[60]

Pennington’s opinion shifts the monetary responsibility of initial medical consultations to the miner who is filing a claim for benefits.^[61] In order to have a credible diagnosis of black lung impairment, a miner would need to: (1) consult with a doctor, (2) pay for chest x-rays or CT scans that would confirm the presence of black lung, and; (3) pay for a doctor to review medical records and make a diagnosis of impairment.^[62] These requirements are no small feat for miners, as they are already struggling with a progressive disease and each requirement could cost up to one thousand dollars.^[63] Heartbreaking, many miners believe fighting for their benefits is not worth the time and effort necessary to obtain them. This leaves a gross injustice to miners that have given their time and, oftentimes, their body for their profession.^[64]

West Virginia, the heart of coal country, could drastically use reform in its statute of limitations. Luckily, the state legislature has attempted to address this concern and address the problem the West Virginia Supreme Court has created for its state’s citizens.^[65] Senate bill 38 was introduced in 2020, which would undo the Supreme Court’s decision and allow miners to file on a continuous basis, even after being denied for benefits once. Miners would just have to provide additional information in support of their claim.^[66] Transferring the Bill into law would make West Virginia more parallel with federal laws regarding black lung, and would eliminate the current burden miners are faced with when obtaining benefits.^[67]

B. Pennsylvania

Pennsylvania’s workers’ compensation laws regarding black lung are significantly different from West Virginia’s.^[68] Pennsylvania’s workers compensation laws stem from the Pennsylvania Occupational Disease Act of 1939, which establishes specific benchmarks miners must meet make a claim for CWP benefits.^[69] Pennsylvania miners are not entitled to any benefits from their employer or the state until they have a “total disability,” according to a provision within the Pennsylvania Occupational Disease Act of 1939.^[70] Unlike Pennsylvania, most states, allow miners to obtain a small sum of benefits based on a the percentage of disability a doctor attributes to them.^[71]

In regard to the state’s statute of limitations for black lung claims, the “clock” does not begin to run until after a miner demonstrates that he has a total disability.^[72] At the time, the miner must file a claim within sixteen months, which is a more restrictive time period compared to West Virginia.^[73]

Another interesting statute of limitations decision derives from the Third Circuit Court of Appeals.^[74] In Eighty-Four Mining Co. v. Director, OWCP [Morris], 812 F.3d 308 (3d Cir. 2016), the Third Circuit held a denial of federal black lung benefits restarts the statute of limitations for black lung workers’ compensation claims.^[75] While no other circuit seems to have adopted this holding, it does appear rational. It is reasonable to allow the evidence in the federal black lung claim to aid a miner in obtaining benefits at the state level.^[76] Therefore, restarting the statute of limitations for state-level claims based on a federal claim rightfully allows miners in Pennsylvania to maximize their chances in obtaining both federal and state black lung benefits.^[77]

Pennsylvania’s general workers’ compensation laws regarding black lung seem more restrictive due to stringent eligibility requirements.^[78] “Total disability” for black lung could take over a decade to develop for many miners, and by then, circumstances of coal operators could have changed.^[79] The delay required for symptoms of CWP to fully develop confuses litigation and would lead to less Pennsylvania claims.

However, the Third Circuit’s decision in Eighty-Four Mining Co. drastically improved the state’s statute of limitation laws.^[80] Since the Third Circuit used its influence to suggest that the statute of limitations should restart for state claims, it puts pressure on the state to provide more opportunities for miners to file within the state.

If Pennsylvania eliminated or expanded its statute of limitations for CWP cases, it would allow the disease to develop in miners without precluding from ever obtaining benefits.^[81] The progression also allows Pennsylvania miners to meet the heavy burden of demonstrating they have a total disability.^[82] Nevertheless, Pennsylvania has significant roadblocks for miners within the Pennsylvania Occupational Disease Act that should be addressed if the state wishes to work in the miner’s best interest.^[83]

C. Kentucky

Kentucky Revised Statute § 342.316 controls black lung workers’ compensation claims within the state.^[84] The statute states that all filings for black lung benefits must contain: (1) a written medical report demonstrating the existence of an occupational disease, including black lung, and, in the case of a black lung claim; (2) an x-ray reading by a National Institute of Health and Safety (NIOSH) certified “B” reader that reads the x-ray as positive for black lung.^[85]

The statute of limitations for black lung claims in Kentucky states that a claim is barred forever unless it is filed: (1) within three years of the date of last injurious exposure or; (2) after the miner experiences the manifestation of symptoms resulting from the occupational disease, whichever is last to occur.^[86] Additionally, all black lung benefit claims are barred after five years from the date of last exposure, regardless of the severity of symptoms.^[87] Further, the state of Kentucky will not distribute benefits to any miner that has not worked at least two out of the last ten years in the state.^[88]

The Kentucky statute also includes an interesting provision limiting eligibility for state black lung benefits.^[89] Under the statute, miners are barred from compensation if: (1) at the time of first employment the miner already had the occupational disease being litigated or; (2) the miner does not answer truthfully in interrogatories regarding their previous places of employment or the nature of their work.^[90] This limitation is not directly related to Kentucky’s statute of limitations laws for CWP cases, but does highlight another relevant burden for miners as they file their claims.

While such limitations seem reasonable, it also provides an opportunity for employers to contest a miner’s right to benefits.^[91] In particular, under the interrogatory response exception, miners would be punished by their failure to recall correctly all the previous places of their employment.^[92] Given that many coal companies change names multiple times after filing for bankruptcy, and the unsure climate of the coal mining industry, it is reasonable if a miner cannot remember every instance of his former employment.^[93] This discrepancy allows employers’ attorneys to attack the credibility of a miner in an effort to deny him benefits.

Kentucky’s statute of limitations sets harsh guidelines on how miners must file, when they can file, and who is eligible to file.^[94] While it is not necessary for a miner to have a “total disability” before filing, the miner is responsible for directly paying for a medical report and an x-ray reading the presence of black lung.^[95] Such medical examinations for miners who are not receiving income from their job.^[96]

Kentucky’s most restrictive bar is the last exposure time limitation, which ignores the scientific fact that black lung disease is a progressive, and could take much longer than five years for symptoms to manifest.^[97] The restriction places a burden on Kentucky’s miners who do not display symptoms until after the five year threshold, no matter how debilitating their disease eventually becomes.^[98] Kentucky, as other states, must accomplish ample work before giving its miners the right to benefits that they deserve.

D. Virginia

Virginia, particularly, Southwestern Virginia, is a coal-producing region within the heart of Appalachia that contributes to one of the nation’s top coal exporting states.^[99] Though experts have often associated democratic-led states, such as Virginia, with pro miner in terms of health benefits, the state’s statute of limitations for state black lung claims are the strictest of any aforementioned.^[100]

Codified through Virginia Code § 65.2-406, the state assembly lists numerous occupational diseases, many of which could be obtained in a coal mine, and statute of limitations regarding each of them.^[101] For CWP, Virginia code states that a miner must file a claim with the state’s workers’ compensation board within three years of any positive diagnosis of the disease by a certified radiologist.^[102]

As discussed before, three years would normally be a generous period to file a tort action. However, considering the progressive nature of black lung disease, the debilitating symptoms required to prove a disability would take years to manifest.^[103] Therefore, many qualified miners would be denied this chance due to the restrictiveness Virginia’s statute of limitations.^[104]

All hope, however, is not lost for Virginia miners to obtain compensation for their occupational disease.^[105] Virginia’s statute of limitations for black lung states the “clock” cannot begin unless a miner’s employer distributes a form explaining his rights and filing deadlines.^[106] Therefore, if a miner’s former employer failed to distribute the required documents due to bankruptcy or simple oversight, the miner can wait to file until his symptoms fully matured and he could, subsequently, win his case.^[107]

A recent case from the Fourth Circuit, Gary Adams v. American Optical Corporation, further illustrated the statute of limitations laws black lung claims in Virginia.^[108] Adams’ employer in this case argued that the statute of limitations began at the date of Adams’ last exposure to coal dust, which, of course, caused the offset of black lung.^[109] The Fourth Circuit firmly denounced this argument, citing the Virginia Supreme Court and stating that the statute of limitations initially runs at the time of injury, at the time of diagnosis, rather than at the time of last coal dust exposure.^[110] Thus, while Virginia has stricter avenues of obtaining workers’ compensation for black lung disease, there are certain provisions that will allow them to overcome.^[111]

IV. Federal Black Lung Benefits – “The Gold Standard”

The Federal Black Lung Benefits Act (“BLBA”), as well as relevant state black lung workers compensation law provide another legal remedy to mitigate miners’ lifelong injury.^[112] While the statute of limitations changes for state claims, federal benefits under the BLBA allows miners, or their widows, to file as many times as they choose throughout their lifetime until they receive benefits.^[113] Though the miner must first file within three years after being diagnosed with black lung,^[114] this unlimited duration to file makes federal law the golden standard for miners’ wellbeing.^[115]

To be qualified for benefits under the BLBA, a miner must establish the following elements: (1) the existence of pneumoconiosis; (2) that the pneumoconiosis arose out of coal mine employment; (3) the miner is totally disabled from a respiratory or pulmonary condition; and (4) the pneumoconiosis contributes to the total disability.^[116]

Black Lung benefits are awarded to individuals who meet the preponderance of evidence burden with proof of total disability due to pneumoconiosis.^[117] The Court is responsible for making factual findings, evaluating credibility of witnesses, and weighing contradicting evidence.^[118] In black lung cases, the facts and legal determinations are made by an Administrative Law Judge.^[119] There is typically a presumption of admissibility, therefore, rigorous exclusionary rules are insignificant where an Administrative Law Judge acts as both Judge and fact finder.^[120] Therefore, evidence is more typically found as admissible in these cases rather than at a common trial.^[121]

Additionally, the duration of the statute of limitations for black lung benefits under the BLBA is of paramount importance in these cases. According to U.S.C. § 422(f)(2), miners are permitted to file for benefits if they do so within three years of any diagnosis of black lung from a doctor.^[122] At that point, the clock runs, and if the miner fails to file within three years, his chance to file is lost forever.^[123] However, once the miner begins to file once, he may re-file continuously until he receives federal benefits.^[124] Likewise, even in death, a miner’s widow has the right to file for benefits under the BLBA with evidence of black lung found during the miner’s autopsy, during previous x-ray, or CT scans.^[125]

The advantage of unlimited filing under the BLBA sets federal law apart from the less generous state law mandates.^[126] Given that black lung is a progressive disease, the health of a miner only gets worse over time.^[127] Therefore, just because a miner is not eligible for benefits within the first two years of his retirement, does not mean his eligibility will not change in the future. Therefore, miners should work with their state legislators to make unlimited filings uniform across the country.^[128]

V. Recommendations For State Statute of Limitations

The miners must combine their wishful thinking with true action. As seen through this review of Appalachian states’ statute of limitations none of the states are truly favorable for claimants that are seeking benefits.^[129] This lack of favor is in stark contrast the immense amount of work and sacrifice suffered by the miners.^[130] There is no harm in imagining what could be done for miners seeking black lung workers compensation, despite their bleak reality.

If state statute of limitations laws were placed in the perspective of miners, they would likely be similar to the BLBA.^[131] The BLBA has a two-year statute of limitation that runs at the time of last exposure.^[132] Additionally, once a miner meets the limitation and timely files for benefits and is denied, he may withdraw and reapply until his condition is enough to cross the compensatory relief threshold.^[133]

State laws should adopt BLBA’s model. While it is understandable that states do not wish for prolonged or excessive litigation, it is as West Virginia Supreme Court Justice Margaret Workman says: “such is the nature of the beast. . . .”^[134] Most, if not all, states have worker’s compensation boards including some states (West Virginia included) that have discretionary boards exclusive to matters such as state workers’ compensation for black lung.^[135] Therefore, it is reasonable to allow miners to continuously file their claims as their disease progresses as they age. It seems inhumane to deprive miners of Appalachia from receiving relief based solely on a technicality: statute of limitations.

Furthermore, the statute of limitations discourages miners from ever bringing a claim because, they must pay for medical examinations and x-ray readings, which are expensive.^[136] As such, paying for medical attention would likely be in vain because two or three years after a miner’s date of last exposure the date of the diagnosis would not be long enough for the black lung to develop enough to receive benefits.^[137]

The Federal Circuits have an opportunity to affect change for miners where change has not occurred for centuries. Following in the footsteps of the Third Circuit in Eighty-Four Mining Co. v. OWCP, states should adopt the principles that restart the statute of limitations for state workers’ compensation for black lung.^[138] Following suit would effectively allow miners to continue filing claims when their symptoms develop, and would give them a better chance at receiving benefits. While it would take a stroke of judicial activism from the federal courts within Appalachia, it is not without precedent.^[139]

VI. Conclusion

Coal mining has powered the United States for generations, mostly at the cost of miners’ health and wellbeing. For making such a sacrifice, miners should be given the opportunity to obtain compensation for the injuries sustained while on the job. Current laws regarding the statute of limitations for workers’ compensation claims based on black lung are not in the best interest of miners, and do not take into consideration the progressive nature of the disease. Miners and concerned citizens should demand a change to the statute of limitations laws, and advocate for state-level laws reflecting the federal BLBA, which give miners the best opportunity at acquiring compensation. In failing to create just laws, Appalachian states have done a gross injustice to its hardest working citizens.