HEALTH & SAFETY

Black Lung Regulations

Mixed black lung ruling has some positive elements

In June 2002 the D.C. Circuit Court issued a mixed ruling overall on NMA's challenge to the Department of Labor's (DOL) new black lung regulations, but ruled favorably on "retroactivity" language and some other areas sought by mining operators.

The federal appeals court generally upheld many of the regulatory changes issued in the final days of the Clinton administration and subsequently supported in court by Bush administration Labor Secretary Elaine Chao.

However, the court found some of the challenged rules impermissibly retroactive as applied to claims pending on the regulations' effective date (Jan. 19, 2001). Among these are the total disability rule; the Doris Coal presumption (caused or aggravated by pneumoconiosis); the definition of "Workers Compensation Law"; and augmented spousal and child benefits.

The court also struck down one regulatory provision challenged by NMA - the "expense" rule. Under this rule, DOL attempted to authorize administrative law judges to shift costs incurred by claimants' production of witnesses to the operator, regardless of which party prevails. The court held that such cost shifting may occur only when the claimant prevails.

Upheld by the court were regulations affecting the definition of pneumoconiosis, change in condition, treating physician, hastening death, operator liability, medical benefits, total disability, evidence limitation, dependency, attorney's fees and cost.

Although almost all the DOL regulations were upheld in terms of future application, many of the challenged regulations were allowed to stand only because DOL narrowed the meaning of those provisions during the course of NMA's litigation, and those limitations are contained in the court's written opinion.