The Columns

Inside the 3L Year: W&L Law Student Argues Unique Black Lung Case

— by on April 3rd, 2015

Paul Wiley, a third-year student in the Black Lung Clinic at Washington and Lee School of Law, recently argued one of the most complex and important legal questions in black lung litigation today.

The case involved a new provision put in place by the Affordable Care Act known as the 15 year rebuttable presumption. Based on this presumption, miners who worked for more than 15 years in underground coal mining and have a totally disabling lung disease are presumed disabled, at least in part, due to coal mine dust.

For his argument, Wiley represented the interests of James Minich, who worked for 30 years as an underground coal miner and is now totally disabled. Minich was awarded black lung benefits by the administrative law judge, but as is common in these cases, his former coal company appealed the award to the Benefits Review Board (BRB). The BRB hears appeals from the decisions of administrative law judges regarding black lung benefits claims and other statutes administered by the Department of Labor.

Wiley says he was interested in the case to gain experience arguing appeals related to regulatory law, which is an area of focus for the law firm in Washington, D.C. he will join after a clerkship with the Supreme Court of Virginia. But he also saw Minich’s case as an opportunity to argue an important point of law that would help many other black lung cases in the future.

“It was an opportunity to get practical experience while also making a positive change in the law,” said Wiley. “There was no way I was going to pass that up.”

After recommending the clinic take the case earlier in the fall, Wiley had only 45 days to prepare the appeal and write the brief before finally making his argument in December. In an unusual move, the BRB posed three questions it wanted the advocates involved in the case to answer. Central to the BRB’s questions was the issue of what must the coal company prove to overcome the rebuttable presumption?

Wiley and the advocates for the other parties in the case faced over an hour of questioning from the judges of the Benefits Review Board. Wiley reminded the BRB that the changes to the Black Lung Benefits Act under consideration were meant to make the complex and technical system of black lung benefits more favorable to disabled miners. Wiley, quoting Senator Robert Byrd, reminded the BRB that the Amendments to the Act “were meant to stop quibbling with dying men.”

Prof. Tim MacDonnell, who directs the Black Lung Clinic, noted that Wiley’s oral argument was outstanding.

While the decision of the BRB in the case is not expected for several months, Wiley said the experience brought his law school experience full circle.

“The Davis moot court competition helped me realize I wanted to do appellate law,” said Wiley. “This argument and my black lung clinic experience overall have helped me realize that I can do it.”

W&L’s Black Lung Clinic, recently named one of the country’s most innovative legal clinics, represents coal miners diagnosed with pneumoconiosis, also known as black lung disease, in pursuit of benefits from coal companies that once employed them. In attempting to collect benefits, miners and survivors face formidable teams of lawyers, paralegals, and doctors that the coal companies assemble to challenge these claims. The Clinic has represented hundreds of disabled coal miners and their surviving spouses since its creation in 1996, and has a success rate of approximately 80%.

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