Today, the U.S. Court of Appeals for the Fourth Circuit issued an unpublished decision in the black lung benefits claim of Ted Latusek. Consolidation Coal Co. v. Latusek, No. 16-1768, slip op. here [Latusek III], affirmed Mr. Latusek’s award in this long-running claim that was originally filed in 1994.
Mr. Latusek’s claim came to prominence after it was featured in Breathless and Burdened, the Pulitzer Prize-winning reporting of Chris Hamby. (Mr. Latusek’s case also got attention from the Charleston Gazette-Mail, as previously covered on this blog.)
Mr. Latusek’s claim involves a dispute over so-called IFP (idiopathic pulmonary fibrosis). It is an exemplar of the tortured procedural path that black lung claims can take. Today’s decision makes the third time that it has reached the U.S. Court of Appeals for the Fourth Circuit.
In today’s per curiam decision by Judges Gregory, Motz, and Traxler, the Fourth Circuit affirmed Mr. Latusek’s award.
In doing so, it held that even though the court had previously reversed an award of benefits to Mr. Latusek, the ALJ properly determined that a mistake in fact had been to support Mr. Latusek’s request to “modify” the prior decision under 33 U.S.C. § 922. The court explained that Mr. Latusek’s new award was based on substantial evidence that was not previously considered—even if there was some overlap with the prior evidence that was held insufficient.
Practically speaking, this is likely to be the end of Mr. Latusek’s litigation. Theoretically, Consolidation Coal still has some avenues to seek additional review, but its chances of success are slim. (The U.S. Supreme Court has not reviewed a federal black lung benefits claim since 1994.)
Mr. Latusek’s claim shows the importance of patience and perseverance in federal black lung benefits law. Black lung claims usually don’t take 24 years, but as Mr. Latusek’s claim shows, they can.
Mr. Latusek was represented by Sue Anne Howard of Howard Law Office in Wheeling, West Virginia.
Consolidation Coal was represented by William S. Mattingly and Jeffrey R. Soukup of Jackson Kelly PLLC in Lexington, Kentucky.
The Director, OWCP was represented by Jeffrey S. Goldberg and others from the U.S. Department of Labor’s Solicitor’s Office.