Lawmakers told black lung issues may require further legislative action

FRANKFORT, Ky. (June 19, 2014) — A 2011 Kentucky Supreme Court ruling that found the state’s method for determining black lung claims to be unconstitutional may require further legislative action, the commissioner for the state Department of Workers’ Claims told lawmakers today.

A healthy lung versus a black lung.
A healthy lung versus a black lung.

Commissioner Dwight Lovan told the Interim Joint Committee on Labor and Industry that the ruling in Vision Mining, Inc. v. Gardner left portions of statutes covering workers’ compensation on the books that the Kentucky Supreme Court ruled unconstitutional.

The 2011 ruling addressed the use of “consensus” readings of X-rays to determine benefits for coal miners who had filed coal workers’ pneumoconiosis (or black lung) claims. The Court agreed with previous rulings that the procedure required by the state for proving that someone has black lung and the statutory requirement to rebut a consensus on a claim were unconstitutional.

Lovan put together a work group to discuss possible legislative recommendations to address the issue, but said an agreement could not be reached within the group. One of the largest issues facing the work group was how to handle black lung cases that had been finalized before the 2011 ruling, he said.

Those cases had been decided based on a 2002 state law that created the consensus requirement.

The work group tried to look at “whether any new changes would be applicable to the already-decided cases,” Lovan said. “But that’s an issue that’s going to be out there whether there’s legislation or not.”

What is clear based on the 2011 ruling, Lovan said, is that Kentucky must treat black lung claim determinations the same way it treats other pneumoconiosis claims.

“It was our ultimate conclusion at the Department of Workers’ Claims and it remains our decision today and our conclusion today that the Supreme Court made it absolutely clear that black lung – coal workers’ pneumoconiosis—should be handled identically to every other occupational pneumoconiosis claim. And so that’s what we began doing,” he said.

Committee Co-Chair Sen. Alice Forgy Kerr, R-Lexington, asked Lovan what the sticking points are for the work group, and when the group will meet again to try to resolve those issues.  Lovan said he’s not sure the group will reach a resolution.

“The major sticking point…was what to do with those roughly 3,000 cases that were decided after 2002 and became final before Vision Mining. The significance is that they became final,” he said.

State Rep. Brent Yonts, D-Greenville, asked why any cases decided based on an “unconstitutional act” are not readjudicated by the court. “Because if the law was unconstitutional as written, then their case is wrongly decided,” he added.

The cases were decided based upon the law at the time, Lovan said. Once a law is found unconstitutional, “generally speaking…except in extraordinary circumstances, the Supreme Court has held that if a party did not appeal challenging constitutionality of their decision at the time, then (the decision) stood. In essence the statute was not void from the beginning…”

Lovan said he believes the issue will go back to the Supreme Court at some point.

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