On August 7, 2017, the Benefits Review Board issued a published decision (available here) concerning the “automatic entitlement” provision at 30 U.S.C. § 932(l). The Board rejected a coal company’s argument that a widow was not entitled to benefits because her deceased husband was awarded benefits after his death rather than before.
The Board’s decision does not represent a change in law, but clarifies that when a coal miner is awarded benefits, then his eligible survivors are automatically entitled to derivative benefits—even if the coal miner is not awarded benefits until after his death.
The only relevant facts are the timeline of Mr. and Mrs. Ferguson’s claims.
- July 23, 2012 – Lee Ferguson files a claim for federal black lung benefits.
- November 19, 2014 – Mr. Ferguson dies.
- March 27, 2015 – Carrie Kathleen Ferguson files a survivor’s claim for benefits.
- November 24, 2015 – Mr. Ferguson’s estate is awarded benefits in his 2012 claim.
- February 4, 2016 & June 28, 2016 – Mrs. Ferguson is awarded benefits (first by the District Director and later by and ALJ) under 30 U.S.C. § 932(l)—a provision of the Black Lung Benefits Act that allows eligible survivors of coal miners awarded benefits to be “automatically entitled” to benefits without needing to prove that the miner’s black lung hastened his death.
The key fact is that Mrs. Ferguson filed her claim before Mr. Ferguson’s claim was awarded.
The coal company and its insurer argued that, as a result of this fact, Mrs. Ferguson was not automatically entitled to benefits under 30 U.S.C. § 932(l). The company emphasized that § 932(l) applies to an eligible survivor of “a miner who was determined to be eligible to receive benefits under [the Act] at the time of his or her death.”
The Board rejected the company’s arguments and held, “As long as the miner is ultimately determined to be eligible to receive benefits, a survivor is entitled to the payment of benefits.”
The Board agreed with the Director that the plain language of the Act does not distinguish between miners’ claims that were awarded before or after death. The Board also said that the company’s argument was foreclosed by the Board’s 2014 published decision in Rothwell v. Heritage Coal Co., 25 B.L.R. 1-141 (BRB 2014), which held that a miner’s award does not need to be final for a survivor to receive derivative benefits (see previous post here).
The Board likewise rejected the company’s challenge to the Department of Labor’s regulations implementing this provision, which says that a survivor is entitled to benefits if the miner’s claim “results or resulted in final award of benefits.” 20 C.F.R. § 725.212(a)(3)(ii). The Board held that neither the prior version of this regulation (from 1980) nor the current version of this regulation (from 2013) required the miner to have received benefits before he died.
The Board lastly rejected the company’s argument that Eleventh Circuit precedent foreclosed the widow’s award. The Board said that U.S. Steel Mining Co., LLC v. Director, OWCP [Starks], 719 F.3d 1275 (11th Cir. 2013), did not address the issue of timing of the miner’s award and that in Drummond Co. v. Director, OWCP [Allred], 650 F. App’x 690 (11th Cir. 2016), the Eleventh Circuit affirmed an award of benefits to a survivor even though the miner was awarded benefits posthumously.
The issue in Ferguson was narrow—I am not aware of it previously coming up in the more than seven years since the Affordable Care Act revived the “automatic entitlement” provision—but the Board’s decision furthers a more equitable system for miners’ families.
As the ALJ and the Board noted, making a widow’s eligibility for derivative benefits dependent on the timing of an award of benefits in the miner’s claim would mean that “‘survivors would be at the mercy’ of delays in the adjudicatory process, as a case involving ‘a miner [who] dies one day before a decision awarding benefits is issued would be treated differently than a case in which the miner dies one day after a benefits award.’” Slip op. n.4 (quoting ALJ’s Decision & Order, at 3).
The Board’s holding means that the system focuses on the miner’s merits eligibility for benefits, not in coincidences of timing.
Ms. Ferguson was represented by John R. Jacobs, J. Thomas Walker, and Cecilia B. Freeman of Maples, Tucker & Jacobs PLLC in Birmingham, Alabama.
Oak Grove Resources and AIG were represented by Kary B. Wolfe of Jones Walker LLP in Birmingham, Alabama.
The Director, OWCP was represented by Emily Goldberg-Kraft of the Department of Labor’s Solicitor’s Office.