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Scott authors court ruling helping black lung victims



FRANKFORT

Coal miners sickened by years of inhaling black dust on the job have been subjected to an unconstitutional system of medical screenings to qualify for worker’s compensation, the Kentucky Supreme Court has ruled.

A sharply divided high court decided that Kentucky has violated the constitutional guarantee of equal protection under the law by requiring miners suffering from coal workers’ pneumoconiosis, better known as black lung, to undergo a litany of tests that workers in other occupations aren’t subjected to when they apply for worker’s comp benefits.

In a 34-page decision written by Justice Will T. Scott, the high court found no “rational basis and justifi able reason for the disparate treatment of coal workers.”

The ruling was celebrated as a victory for sick miners in the Kentucky coalfields.

“Coal miners have been totally done wrong, and thank God that the Supreme Court has finally come across with a good ruling,” said Carl Shoupe, a disabled miner from Benham, a historic Appalachian coal town.

The ruling served notice on lawmakers in one of the nation’s top coal-producing states that black lung will be on the agenda when they convene in early January.

“It certainly will require a review, and hopefully we can address the court’s concerns,” said Sen. Robin Webb, D-Grayson, a lawyer and former coal miner.

Webb said coalfield lawmakers have pressed in the past to remove impediments to sick miners getting worker’s comp.

“It’s a difficult standard, almost an impossible standard that places an undue burden on miners,” she said.

House Speaker Greg Stumbo, D-Prestonsburg, said the ruling supports the stand he took when the General Assembly imposed the black lung restrictions 15 years ago.

“Coal miners should not be treated any better or worse than any other group of employees,” Stumbo said. “I made this same statement to my colleagues in 1996 when the law passed and I voted against it. Unfortunately, a lot of good coal miners were denied a fair hearing in the years since then, but justice and common sense have finally come to pass on a tragic law that violated the constitutional rights of Kentucky miners.”

Public Protection Cabinet spokesman Dick Brown said that some 300 pending black lung cases were being held in abeyance pending the Supreme Court ruling. Brown said those cases could remain on hold pending action by the Legislature.

Coal miners Jesse Gardner, Joe Martinez and others brought the case, saying Kentucky’s law subjected them to a more stringent burden of proof than workers who suffer from pneumoconiosis from sources other than coal dust.

“Pneumoconiosis caused by exposure to coal dust is the same disease as pneumoconiosis caused by exposure to dust particles in other industries, yet coal workers face different, higher standard-of-proof requirements than those other workers,” Scott wrote. “This is an arbitrary distinction between similarly situated individuals and thus it violates the equal protection guarantees of the federal and state constitutions.”

Justices Bill Cunningham, Mary Noble and Daniel Venters concurred in the majority opinion. Justice Wil Schroder concurred only in part, and Chief Justice John D. Minton Jr. dissented in an opinion with which Justice Lisabeth Hughes Abramson agreed.

Minton said the majority ruling runs contrary to wellestablished precedent, and that the Legislature, in setting up the current system for qualifying for black lung benefits, rationally believed it “would ensure unbiased, prompt and efficient” processing of claims.

Prestonsburg lawyer Thomas Moak said the state’s system for awarding worker’s compensation to black lung victims is so stringent that most miners don’t bother to try for it. Those who do apply and are confirmed by a panel of physicians typically don’t qualify for enough money to cover basic living expenses.

“The current system provides benefits in less than 5 percent of claims,” Moak said.



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