Senators consider changes to Black Lung requirements

WASHINGTON, W.Va. — Several coal state senators, including U.S. Senators Jay Rockefeller and Joe Manchin of West Virginia, are attempting to enact changes to the rules enabling veteran coal miners to qualify for Black Lung benefits.

During testimony Tuesday on Capitol Hill before members of the Senate subcommittee on Employment and Workplace Safety, witnesses testified about the difficult process miners encounter when they attempt to file Black Lung claims.

“In order to qualify disabled miners and their widows must engage in fairly complex and adversarial litigation against large coal companies and experienced attorneys with significantly greater resources,” said John Cline, an attorney from Piney View, West Virginia. “The adversarial process is not only complex, but has been abused by coal companies and their attorneys, at least some of them.”

Cline provided committee members with five examples of deceptive practices he had encountered in representing coal miners attempting to qualify for benefits.  He spotlighted the case of Gary Fox, a longtime coal miner from Bluefield who died in 2009.   Cline said the West Virginia Black Lung Review Board provided a report to him and to his employer Elk Run Coal Company certifying he suffered from Black Lung. Although he prevailed, Elk Run appealed the case.

A local pathologist during an examination suggested he may also have lung cancer when he did not.  Cline added two pathologists hired as expert witnesses by Elk Run’s legal team both concluded Fox did have Black Lung, but the evidence in their report was suppressed.

“Lawyers and judges familiar with Black Lung litigation know the pathology is the gold standard and those two pathology reports met the requirements for benefits under the Act,” Cline testified. “Elk Run knew Mr. Fox qualified, but Elk Run’s attorneys not only withheld those reports, but used the discredited opinion of the local pathologist to convince four reviewing expert pulmonologists and an administrative law judge that Mr. Fox did not have black lung at all.”

Fox was forced to go back to work to support his family and worked eight more years until his condition progress to where he could work no more.  He applied for benefits a second time and was awarded, but died a year later.

“I think it could have had a different outcome if all the evidence had been presented the first time,” Cline said. “Mr. Fox could have lived a longer life.”

The committee also heard testimony from Robert Bailey, a retired miner diagnosed with black lung.  Bailey told the committee although he received his benefits it was a struggle and his was easier than most.

“You got awarded, but it’s hard.  You still have the disease and you struggle with the disease,” he said. “It’s not just the miner, it’s their families.  Their families suffer just as much, if not more than the miner himself.”

Bailey said he knew other miners still struggling to gain their benefits and he was there to testify in hopes changes would be made to make their path to compensation easier.

“I would like to see Congress step in and make changes that would help process these claims that have taken so long for most miners to even receive benefits.  Most of them are turned down,” he said.

Senator John Casey of Pennsylvania asked Cline what he would like to see out of Congress to level the playing field for miners attempting to gain black lung benefits.

“The first would be to require the disclosure of at least all radiographic and pathology interpretations developed for the purpose of litigation,” Cline said. “Just to protect miners’ health and deter misleading the judges.”

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