“The first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource — the miner.” — First sentence of the 1969 Federal Coal Mine Health and Safety Act
Center for Public Integrity reporter Chris Hamby conducted a yearlong investigation into the failed Black Lung Benefits Act that was passed by Congress to help disabled coalminers in 1969. ABC News aired a three-part series beginning October 30 that revealed startling, unethical measures used to help defeat the miner and his widow in their weakest hour. These methods, driven by money from coal companies, involve the biggest and oldest law firm in West Virginia, Jackson Kelly and a renowned medical center in this country, John Hopkins University. Actions by these revered groups were clandestine and protected by politician and policy.
This investigation uncovered evidence that this prominent law firm has a longstanding record of withholding key evidence in black lung benefits litigation. In 2009, Douglas Smoot, a federal black lung attorney for Jackson Kelly, admitted to withholding key evidence in a black lung case involving retired miner Elmer Daugherty. Smoot’s law license was suspended for one year. According to the report, attorney Smoot felt no remorse for his actions.
John Hopkins University, after the airing of this report, has suspended its Black Lung Reading Division pending an investigation. Dr. Paul Wheeler, who is head of the division in charge of reading black lung x-rays from the coalfields, said the last time he recalled finding a case of severe black lung (also known as complicated pneumoconiosis) — a finding that would automatically qualify a miner for benefits under a special federal program — was in “the 1970s or the early ‘80s.” The Center reviewed 1,500 cases decided since 2000 in which Dr. Wheeler, head of Johns Hopkins’s prestigious Black Lung X-Ray Reading Division, read 3,400 x-rays and did not find one single case of complicated black lung despite biopsy or autopsy-proven black lung in more than 100 of those cases. Dr. Wheeler is currently on leave.
Filing for assistance under the Black Lung Benefits Act is a long and hard road, and many of the miners who suffer the disease die before a decision is reached. The rules seem to favor the coal companies even though the law was intended to help the sick miner or his widow. It’s all about money, not about a miner suffering from black lung after working 25-plus years digging coal for a company, being loyal to that company and having high work standards. None of those things count when the miner begins having shortness of breath, loses strength in his once strong arms and legs, suffers panic attacks when in closed quarters because he can’t get a breath and is hacking up black phlegm, and a Department of Labor “certified doctor” tells him he is suffering from complicated coal workers’ pneumoconiosis, more commonly known as black lung. He is lucky to find a lawyer to assist his case, and since the miner has been busy keeping the legal eagles and doctors warm and their offices well lit he hasn’t the time or resources to attend law school himself.
Miners suffering black lung often must rely on assistance by employees at black lung clinics instead of lawyers. The miner is already losing ground because of his deteriorating physical condition and begins the endless struggle with only his wife in the courtroom by his side. He is examined by even more doctors paid by coal companies, then quizzed by them until his brains are fried. In the event the miner wins a round or two, coal companies can appeal and the process starts all over. In the rare event a miner is awarded benefits and the coal company appeals and wins, the miner must repay those benefits unless the miner can prove hardship.
Black lung is a debilitating disease caused by inhaling coal dust. There is no cure. It can be fatal. It is preventable. Dust levels are regulated by law. Congress made a promise in 1969 that mining companies would have to keep dust levels down and black lung would be no more. Numbers decreased until the late 1990s.
National Institute for Occupational Safety and Health data reflect the resurgence in black lung in epidemic proportions, particularly the most severe, fast-progressing type occurring in younger miners in the “hot spots” in Central Appalachia. The fine particles of coal dust breathed in by coalminers cannot be destroyed within the lungs or removed. The particles build up, causing thickness and scarring. The lungs then become less efficient in getting oxygen into the blood. As the disease progresses, the miner may develop an enlargement and strain of the right side of the heart which may result in heart failure. Some miners develop emphysema, a disease in which tiny air sacs in the lungs become damaged, leading to shortness of breath. Respiratory and heart failure are also complications of black lung disease. Black lung is a progressive disease in which damage can continue to spread throughout the lungs even after exposure to the dust has ended.
Black lung is a debilitating family illness. Depression, anger and resentment are symptoms miners exhibit, none of which may be listed on the “chart.” The pain and agony of watching a loved one suffocate to death is something not soon forgotten by family members. And to have an organized group of well-educated professionals working around the clock to make sure the miner dies before he can receive black lung benefits to support his family after he is no longer able to work, is an added burden.
As this Center for Integrity report points out, in recent years the number of federal black lung claims has been increasing. However, the miners’ success rate remains low – about 14 percent at the initial level during the 2012 fiscal year. But after the appeals process, the success rate will be much lower. Black lung benefits are approximately $600 per month and a disabled miner with three or more dependents will receive about $1,250 per month to live on.
Dead Miner’s Case Could Change History
John Cline, a VISTA Volunteer turned clinic worker turned black lung claimant attorney, works out of his home in Piney View, West Virginia. In 2006 he agreed to represent Gary Fox, a miner suffering from the complicated form of black lung – progressive massive fibrosis. Fox had worked more than 25 years in the coalmine. His health failed and upon examination by a doctor paid for by the Labor Department indicating he had black lung, he filed for black lung benefits in 1999. His claim was denied. Fox represented himself at the legal hearing and the law firm of Jackson Kelly represented the coal company, a subsidiary of A.T. Massey. (The Center for Public Integrity during found fewer than one third of black lung claimants are represented by attorneys.)
The most important piece of evidence in Gary Fox’s case for black lung benefits was not what was presented as evidence during the hearing but what was left out.
In 1998, a suspicious mass was removed from Fox’s lung to rule out cancer. The hospital pathologist, who did not look for black lung or even know the patient’s occupation, diagnosed a pseudotumor with “numerous anthracotic (carbon) deposits.” In building their case against Fox, attorneys for Jackson Kelly sent pathology slides of Fox’s lung tissue to two pathologists, but both wrote reports indicating the mass was likely complicated black lung, which would have entitled Fox to benefits. The pathologists who wrote these reports were two of the “go-to” doctors for Jackson Kelly.
Instead of accepting their expert opinions allowing Fox to receive black lung benefits in the amount of $704.30 per month to take care of himself and his wife, Jackson Kelly withheld the information. At the time, Fox, the judge, and Jackson Kelly’s own four expert pulmonologists had no idea the reports existed.
Cline had graduated from law school only five years earlier but had seen the Jackson Kelly Law Firm in action for years while working as a lay representative helping miners file black lung claims. Cline suspected Jackson Kelly was withholding key evidence in the Fox case. Jackson Kelly was served with a formal written request asking for evidence not turned over, but it took the filing of a discovery motion with Judge Thomas Burke before Cline received what he was looking for — the reports from the two pathologists indicating the mass likely was complicated black lung.
Judge Burke agreed with what Cline had been arguing for years that, the “employer must provide accurate evidence to its expert witnesses.” Judge Burke determined that Jackson Kelly’s behavior amounted to “fraud on the court.” Burke reopened Fox’s previous claim and awarded benefits dating back to 1997. Jackson Kelly also withheld an X-ray reading finding complicated black lung a year before Fox’s biopsy. Fox and Cline won but only for a moment.
Jackson Kelly appealed the decision and Fox’s case is still unresolved. A decision in favor of Fox and Cline could change the course of black lung ligation. Although the judge deemed Jackson Kelly’s actions to be a fraudulent scheme that threatened the integrity of the judicial system, a split appeals court vacated that ruling, and the decision is now on pending before the Fourth Circuit Court of Appeals.
Gary Fox died on April 14, 2009. After his death, doctors opined that his breathing problems caused his heart to fail, killing him. When a pathologist performed the autopsy, he saw extensive scarring and dark masses in Fox’s lungs. It was undoubtedly complicated black lung. It always had been.
Betty Dotson-Lewis is the author of four books on Appalachia – “Appalachia, Spirit Triumphant,” “Sago Mine Disaster, Featured Story,” “The Sunny Side of Appalachia, Bluegrass from the Grassroots,” and “The Girl from Stretchneck Holler, Inside Appalachia.”