By Kate Mishkin
November 5, 2018 - A West Virginia Supreme Court decision issued Friday afternoon could limit a coal miner’s ability to file workers’ compensation claims.
The decision was written by Justice Tim Armstead, with Justices Paul Farrell, Beth Walker and Evan Jenkins in agreement. Farrell sat in for suspended Justice Allen Loughry.
Chief Justice Margaret Workman wrote a dissenting opinion, calling the majority opinion an “extreme departure from the long-standing rule of law firmly established in the management of [Occupational Pneumoconiosis] claims.”
This was one of the first major cases heard by Jenkins and Armstead, who were both appointed to the Supreme Court by Gov. Jim Justice at the end of August.
Armstead, former Speaker of the House of Delegates, filled a vacancy left by the resignation of Menis Ketchum. Jenkins, a former U.S. representative, filled the seat left by Robin Davis’ retirement. Both Ketchum and Davis stepped down amid a federal investigation into the court and impeachment proceedings brought against the justices by the Legislature.
Armstead and Jenkins are running to remain in those seats in the general election Tuesday.
The case focused on three coal miners and one factory worker who filed workers’ compensation claims hoping to be examined by the Occupational Pneumoconiosis Board. The four claims were rejected because they either weren’t filed within three years after the last day of exposure, or within three years of being diagnosed with black lung.
Pneumoconiosis, or black lung, is caused by inhaling coal dust and can be fatal. Dust exposure has also been linked to lung cancer and emphysema. Despite a number of federal regulations starting in 1969, the disease has only increased among coal miners in the past two decades.
“Black lung is a progressive disease. It doesn’t get better; it gets worse over time, there’s no treatment, there’s no cure,” said Robert Williams, a lawyer for the petitioners. “It’s a death sentence for a lot of these individuals.”
The justices acknowledged the progressive nature of the disease, but decided that those claims for benefits should be denied. But, they wrote, all four men are “free to file a claim within three years of receiving a diagnosed impairment due to occupational pneumoconiosis.”
In her dissenting opinion, Workman said the majority’s opinion that repeat claims would put a burden on the OP Board was false.
“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.