Workman rips 4-1 Supreme Court decision regarding black lung benefits for coal miners

By Chris Dickerson | Nov 5, 2018

CHARLESTON – A state Supreme Court decision could affect how coal miners file workers’ compensation claims, but Chief Justice Margaret Workman isn't happy about it.

The court, in an opinion issued Nov. 2, said the claims of three coal miners and one factory worker were rightly rejected for occupational pneumoconiosis benefits by the Workers’ Compensation Board of Review because the claims weren’t filed within three years of the last exposure or within three years of being diagnosed with black lung.

Justice Tim Armstead wrote the 4-1 opinion. Workman dissented and filed a separate opinion chastising the majority decision.

Armstead wrote that benefits “cannot be awarded on a diagnosis of OP alone. An impairment is also required.” He said state code says “there shall be no permanent partial disability awarded ‘based solely upon a diagnosis of occupational pneumoconiosis, it being the intent of the Legislature to eliminate any permanent partial disability awards for occupational pneumoconiosis without a specific finding of measurable impairment.’”

But, he said the cases concern the application process prior to referral to the Occupational Pneumoconiosis Board.

“This court holds that where a claim for occupational pneumoconiosis benefits has been denied, a new application may be filed, in cases not involving the death of the claimant, based on the same date of last exposure as the prior claim, if filed pursuant to the first time limitation and attendant requirements: within three years of the date of last exposure to occupational dust,” Armstead wrote. “If not filed within that time limitation, a new application for benefits may be filed pursuant to the second time limitation: within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the claimant by a physician.

“Under the second time limitation, the new application, will not be referred to the Occupational Pneumoconiosis Board unless the Physician’s Report filed with the claimant’s new application sets forth a diagnosed impairment due to occupational pneumoconiosis.”

The court did say all four men could file a claim within three years of receiving a diagnosed impairment due to occupational pneumoconiosis.

In her dissent, also released Nov. 2, Workman said the majority was wrong to say repeat claims would cause undue work on the OP Board. She also said the majority in this case is guilty of judicial activism.

“By utilizing an inapplicable statute of limitations to bar even the filing of a claim, today’s opinion is an extreme departure from the long-standing rule of law firmly established in the management of OP claims,” Workman wrote. “The majority is way too eager to radically rewrite West Virginia Code … with far-reaching and grotesquely unfair consequences.

“It demonstrates either an ignorance of the law or a callous disregard for those who suffer from OP. While the majority claims to be against judicial activism, apparently it will make exceptions as its agenda requires. …

“The majority missed the entire point of this appeal. The majority fully conflates substantive evidentiary requirements with this statute of limitations — two distinct legal concepts. The result of this extraordinary fusion is catastrophic and legally fallacious. It represents a remarkable feat of statutory contortion.”

Workman also says the majority opinion “completely distorts the plain language” of state code that provides a time limit for the filing of workers’ compensation claims for OP and “creates out of whole cloth” a new requirement for filing by holding these claimants must have a physician’s diagnosis of impairment due to OP.

“I am appalled that the majority would ignore established precedent and West Virginia Code, which provides a claimant may file a new claim for OP (three years from the date of the last OP Board’s decision) if his or her earlier filings were premature, considering the progressive nature of this dreadful disease,” Workman wrote. “The majority’s analysis of this important issue is woefully under-developed and its conclusion is blatantly wrong. …

“Our Legislature has long recognized that OP evolves into a chronic and progressive respiratory disease that may lay dormant for years before totally disabling and killing many of these coal miners,” she wrote, adding that black lung claims the lives of 1,500 coal miners annually in the United States.

“In light of this ongoing tragedy, our Legislature has implemented statutes and regulations to ensure workers exposed to the hazards of OP receive follow-up medical examinations for the remainder of their lives so that they may receive appropriate compensation,” she wrote. “Yet, the majority rewrites long-standing legislation, ignores this Court’s precedent, and creates new law encumbering workers’ access to the OP Board. The majority either grossly misunderstands these legal principles or chooses to show gross insensitivity to the plight of West Virginia’s coal miners.”

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