Howard, who worked at Band Mill No. 2 mine in Letcher County, Ky., suffered head injuries on the job in June 2010 and was discharged almost immediately upon his return the following May. Howard filed a complaint of discrimination with MSHA, alleging that he was fired for engaging in activity protected by the Federal Mine Safety and Health Act of 1977 on numerous occasions beginning in April 2007. Section 105(c)(2) of the Mine Act states that a miner cannot be discharged, discriminated against or interfered with in the exercise of his statutory rights because he has filed a complaint regarding a health or safety violation. MSHA initiated an investigation, and upon finding merit to the complaint, filed the case with the review commission.

According to court documents, Cumberland River Coal refused to allow Howard to return to his job after being released to return to work by his treating physician. Instead, the mine operator sought the supplemental opinion of a doctor who, after changing his mind from his earlier diagnosis, determined that Howard could not return to work.

“There is no suggestion that Howard was terminated due to poor work performance and there was no incident that would have justified his termination,” wrote Administrative Law Judge Margaret A. Miller. “The only difficulty that [the mine operator] had with Howard was the fact that he continued to make safety complaints and continued to contact MSHA. Finally, not only was there open hostility against Howard, he was treated differently than other miners who had suffered a work-related injury.”