Compromise settlements are famously prohibited under the Black Lung Act, but the author of a highly accessible and passionate article is none too pleased about it. See Patrick R. Baker, The Black Lung Benefits Program: Debunking the Myths Surrounding Settlement, 10 Appalachian Natural Resources Law Journal 1 (2015-16).
The article is accessible in that it is well-written and commences with a helpful history of the law and its several amendments. Meanwhile, the author explains the no-settlement proviso and the leading Fourth Circuit case that has put sharp teeth in the ban. It’s passionate in the sense that he finds the complete restriction on settlements, in the present day, nonsensical. He makes the case that, in light of the ban, the system is “broken” – a term he uses twice here to characterize the law. (As to the leading court case, see Ramey v. Director, OWCP, 326 F.3d 474 (4th Cir. 2003)).
The author believes the law should be changed to allow compromise settlements.
The author, a law professor at the Appalachian School of Law, recognizes that the ban on settlements stems from the paternalistic spirit that imbues this niche workers’ compensation law – just as it does the many state programs. He asserts, however, that the unfortunate reality is that the inability to settle causes most employers to fight claims, with the net effect that litigation takes forever. Indeed, many ill miners actually die before their claims are ever adjudicated. How, he asks, can a remedial statute like the Black Lung Act aid its intended beneficiaries – coal miners – if they can never live to achieve a recovery? Securing some level of recovery, in his view, would be better than this fate.
The author recognizes that the idea of settlement of these claims makes many nervous, because by its nature Black Lung is a progressive disease which inevitably worsens. It is hence difficult, at least in theory, to come up with a settlement amount which will accurately, or adequately, compensate the miner for the condition.
To this concern the author has very pragmatic answers. First, settlements could be allowed on an interim-style basis – a compromise settlement could be reached, with the miner able later to prosecute a claim for (presumably) a material worsening. (Thus, we are talking here about settlements without final release, an idea foreign to the Pennsylvania practitioner, but not unheard of among state programs.) Second, settlements are now common in other areas “involving personal wellbeing and health,” so why not with Black Lung? Third, coal miners are, in the present day, much more sophisticated than they were decades ago, and are in a good position to make a decision to settle. They are no longer at risk of “bargaining away their rights for some company script.”
The author, despite his disdain for excessive and misguided oversight, does not totally abandon paternalism. In this regard, he supports review and approval of proposed settlements by the Department of Labor, pointing out that the Virginia Workers’ Compensation Commission undertakes precisely such oversight of proposed settlement of state claims.
P.S.: The author, throughout his enlightening article, cites another recent essay that addresses structural difficulties in the Black Lung Act. See Brandon Kenney, Recalibrating the Black Lung Benefits Program: Removing Systematic Procedural Barriers from Administrative Proceedings, 18 University of Pennsylvania Journal of Constitutional Law 329 (2015).