On September 3, 2014, the U.S. Department of Labor’s Benefits Review Board (the appellate body within the agency that reviews decisions in black lung benefits claims) issued a rare published decision in a black lung case.
In Rothwell v. Heritage Coal Co. (BRB No. 14-0044 BLA) (decision here), the Board addressed a narrow issue that impacts widows of coal miners and held that a miner’s award of black lung benefits does not need to be final for a miner’s survivor to be entitled to derivative benefits under the “automatic entitlement” provision at 30 U.S.C. § 932(l).
The issue arises when a miner passes away while his claim is pending. The miner’s survivor (usually his widow) then files a claim in her name while also continuing to pursue the miner’s claim. The issue in Rothwell arises when the miner’s claim is awarded at an early stage, but is not considered final because the award is being challenged. The facts of Rothwell are representative:
- July 2009: Mr. Rothwell files a claim for black lung benefits.
- January 2011: The District Director awards benefits in Mr. Rothwell’s claim, but Heritage Coal Company challenges the award and seeks a hearing before an administrative law judge (Judge Reilly). In the meantime, Mr. Rothwell is receiving interim benefits.
- April 2013: Mr. Rothwell passes away. Judge Reilly substitutes Mrs. Rothwell to represent the estate of Mr. Rothwell in his claim.
- May 2013: Mrs. Rothwell files a claim for benefits in her name. The District Director awards derivative benefits under 932(l) because Mr. Rothwell was receiving benefits when he died. Heritage Coal challenged this award and sought a formal hearing before an administrative law judge (Judge Colwell).
- August 2013: Judge Colwell remands Mrs. Rothwell’s claim to the District Director “until such time as a decision in the miner’s claim has become final.” (decision here)
- September 2013: Judge Reilly awards benefits in Mr. Rothwell’s claim, but Heritage Coal appeals the award. (Note that Heritage Coal subsequently dismissed this appeal, preferring to pursue modification proceedings before the District Director instead.)
The Board held that Judge Colwell erred by remanding Mrs. Rothwell’s claim.
The Board first said that finality is not required by the statutory language at § 932(l) (“In no case shall the eligible survivors of a miner who was determined to be eligible to receive benefits under this subchapter at the time of his or her death be required to file a new claim for benefits, or refile or otherwise revalidate the claim of such miner.“)
The Board also held that new regulatory language using the phrase “final award” at 20 C.F.R. § 725.212(a)(3)(ii) did not change the outcome. The language (effective in October 2013) says a survivor gets derivative benefits following a miner’s claim “which results or resulted in a final award of benefits.” The Board explained that the verb “results” means that an award could become final in the future, so it made sense to award derivative benefits pending final resolution.
One interesting aspect about the case is that the only party that filed a brief before the Board was the Director, OWCP who initiated the appeal of Judge Colwell’s remand order. In other words, neither Mrs. Rothwell nor Heritage Coal asserted any arguments about whether Judge Colwell’s remand order was proper.
This decision is favorable to miner’s survivors and should simplify the interaction between pending claims of deceased miners and claims of widows. Presumably administrative law judges will consolidate the miner’s and the widow’s claims and the claims will no longer be split among different levels of the Department of Labor’s system.
Congratulations to Maia S. Fisher and the rest of the team at the Department of Labor’s Solicitor’s Office.