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10-1948 Keene v. Consolidation Coal Co.

By: WISCONSIN LAW JOURNAL STAFF//May 19, 2011//

10-1948 Keene v. Consolidation Coal Co.

By: WISCONSIN LAW JOURNAL STAFF//May 19, 2011//

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Constitutional Law
Due process; takings; black lung disease

Section 1556 of the PPACA, amending the Black Lung Benefits Act, to create a retroactive presumption in favor of benefits, is not unconstitutional.

“Consol falls far short of meeting its burden. Notably, the Supreme Court has already rejected an argument that the BLBA as a whole violates due process because it imposes retroactive liability on coal mine operators. See Turner Elkhorn, 428 U.S. at 19-20. There, the Court concluded that ‘the imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor—the operators and the coal consumers.’ Id. at 18.”

“Consol largely ignores this precedent and contends instead that, because Congress did not discuss the retroactive nature of § 1556, the legislation is irrational. But two days after the passage of the PPACA, one of its senator sponsors emphasized that § 1556 would provide people who recently filed a claim with a ‘fair shake’ at accessing benefits. See 156 Cong. Rec. S2083-84. Thus, the rational purpose for applying the 15-year presumption retroactively is to give miners and their survivors whose claims were recently filed a better shot at obtaining benefits.”

Petition Granted.

10-1948 Keene v. Consolidation Coal Co.

Petition for Review of Orders of the Benefits Review Board, Evans, J.

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