Fourth Circuit Case Affirming Benefits for Unrepresented Widow Demonstrates Delays and Lack of Adequate Representation for Black Lung Claimants (West Virginia CWP Fund v. Loudermilk)
Last week, the U.S. Court of Appeals for the Fourth Circuit summarily affirmed the decisions awarding benefits to Valla Jean Loudermilk and her deceased husband Harold E. Loudermilk. The Fourth Circuit’s opinion in West Virginia CWP Fund v. Loudermilk, 611 Fed.Appx. 158 (4th Cir. Aug. 6, 2015), is available in slip opinion form here). The case is most notable for representing two of the major problems that coal miners and their families face in the black lung benefits system: delays in the legal process and difficulty finding an attorney.
As has become common in the Fourth Circuit, in Loudermilk the court did not provide a legal analysis, instead the three judges (Niemeyer, Diaz, and Floyd) issued a unpublished, per curiam decision that said simply: “Our review of the record discloses that the ALJ’s decision is based upon substantial evidence and that the Board’s decision is without reversible error. Accordingly, we deny the petition for review.“
Because the brief of West Virginia CWP Fund is sealed, it is difficult to know exactly what issues that company raised, but from the Board’s decision affirming the awards of benefits (available here) it appears to be another case about the rebuttal standard for disability causation and about whether substantial evidence supports the ALJ’s awards. (The Fourth Circuit resolved the issue about the rebuttal standard in West Virginia CWP Fund v. Bender, a case that was decided while Mrs. Loudermilk’s claim was pending before the Fourth Circuit.)
Loudermilk may not be notable for legal precedent, but it is factually emblematic for the time that it took the claim to be resolved and the difficulty that Mrs. Loudermilk had with finding an attorney.
Mr. Loudermilk filed his claim on April 5, 2006. He died that July and for the subsequent 9 years, his widow was pursuing his claim as well as a survivor’s claim that she filed. 9 years is a long time, but far from an outlier in black lung claims. For example, last year the Fourth Circuit affirmed Collins v. Pond Creek Mining, a case involving a claim filed 17 years earlier.
During much of the 9-plus years, Mrs. Loudermilk was pursuing the case without the assistance from an attorney, even on appeal. Before the U.S. Court of Appeals on November 29, 2013, Mrs. Loudermilk wrote “I am in the process of obtaining a counsel. At this time I do not have counsel. I do want a counsel to participate in this.“
Apparently Mrs. Loudermilk never found an attorney.
Months later on New Year’s Eve 2013, Mrs. Loudermilk’s daughter wrote a poignant letter (embedded below) to the court about the struggles that her mother faced with the claim process and with finding an attorney.
Honorable Law Judge,
I am writing on behalf of my 81 year old mother, Valla Jean Loudermilk ( on behalf of an widow of Harold Loudermilk). I have contacted many attorneys. Each has declined taking on my mother’s case. We are unable to obtain a lawyer. The lawyers explained they do not step into a case that has went this far in the appeal process.
My Father Harold Loudermilk worked 32 plus years in the coal mines. Of the 32 plus years he had worked enough years to receive a small pension. My father also meets all the requirements to apply and receive Black Lung benefits. It was a shame he had passed away on July 26, 2006 and received his letter of approval in August of 2006. My mother and I have been pursuing this matter for several years now.
At 81 years of age and failing health and vision my mother is unable to attend a hearing on her own behalf. Even though each appeal of the coal company, Lafayette Springs Enterprise has been denied they continue to sink more monies into pursuing the case of denial of benefits. I am not a lawyer or up to date on the law of Black Lung appeals. However I am writing to explain the absences of a Lawyer and my mother appearance at this hearing. To plead to the court that this appeal be found for my mother, Valla Jean Loudermilk (on behalf of and widow of Harold Loudermilk). Letting the records show Harold Loudermilk has meet all requirements, physically, mentally, emotionally and did have pneumoconiosis. My Father was on oxygen for a very long time prior to any other illness he may have suffered later in life. Each doctor telling him the same, black lung. Upon questioning doctors regarding filing for black lung, each doctor would explain to my father it was a waste of time & money and they did not get involved in such claims. So many times we were told the coal companies always win, they have the money to fight it and backing.On behalf of my deceased father and my mother Valla Jean Loudermilk
I pray this Court find and deny Lafayette Springs Enterprise their appeal.
Sincerely,
Sherry J Clark
Loudermilk – Letter Re Status of Counsel 12-31-2013
It is good to see that Mrs. Loudermilk persevered and was successful in the end, but it is another aspect of the tragedy of black lung that it took her 9 years and the difficulty of pursuing the claim through multiple appeals without the help of a lawyer. Mr. and Mrs. Loudermilk were proven to be entitled to black lung benefits. One of the hidden icebergs within the black lung benefits system is the number of widows who like Mrs. Loudermilk have good claims—but unlike Mrs. Loudermilk do not dedicate nearly a decade to fighting for what they deserve.
West Virginia CWP Fund and Lafayette Springs Enterprise were represented by Tiffany Brooke Davis and Ashley Marie Harman of Jackson Kelly PLLC.
The Director, OWCP was represented by Michelle Seyman Gerdano and Gary K. Stearman of the Department of Labor’s Solicitor’s Office.
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