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Oct
2013
31

Modern Must-Read: The Systematic Denial of Health Benefits to Black Lung Victims by the Coal and Medical Industries

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A new series of articles from the Center for Public Integrity’s Chris Hamby — “Breathless and Burdened: Dying from Black Lung, Buried by Law and Medicine” — provides in-depth detail of how lawyers and doctors prevent coal miners with black lung disease from receiving benefits.  Using law firms like Jackson Kelly, PLLC and medical teams from John Hopkins, the coal industry has leveraged its power to withhold any evidence of black lung diagnosis from the courts — an unethical abuse of the judicial system at best, and a top-down systematic abuse of power at worst.

Hamby’s three part series, of which parts one and two have already been published, is a shining must-read of modern labor journalism.  

Part One tells the story of veteran miner Gary Fox and his journey through the legal system after being diagnosed with complicated coal workers’ pneumoconiosis.  As in other cases unearthed by the CPI’s researchers, Jackson Kelly lawyers withheld evidence of Mr. Fox’s diagnosis in court to prevent his family from collecting $704.30 in monthly benefits.

This case closely mirrors others in which Jackson Kelly deceived the court.  Often times, these violations went unnoticed and unchecked because the miners had less qualified lawyers or chose to represent themselves.  This was the case with Mr. Fox who eventually lost his claim.  However, his family is still fighting despite Gary’s death from black lung in 2009.  Chris Hamby sets the scene for the original day in court that shaped the last decade of a man’s life:

On this September morning in 2000, in the courthouse named for longtime Sen. Robert C. Byrd, an experienced Jackson Kelly attorney sat at one table. At the other, Gary and Mary sat alone, having tried unsuccessfully to find a lawyer. This imbalance is not uncommon, as claimants’ attorneys have fled the federal black lung system in recent decades. Time and money are on the side of the coal company, which can hire scads of experts and drag cases out for years or decades. Miners’ lawyers are legally barred from charging claimants any fees, and the payoff, in the rare event of a win, is relatively meager.

Tall, lean and stoic, Fox, then 50, answered the judge’s questions with quiet deference — “Yes, sir” and “No, sir.” His brief testimony, along with the report from the examination paid for by the Labor Department, constituted virtually his entire case. Then it was Jackson Kelly’s turn. Exhibit after exhibit became part of the record — medical reports, depositions, résumés of eminent doctors who’d reviewed the evidence.

More important, however, was what didn’t make it into the record. Two years earlier, doctors had removed a suspicious mass from Fox’s lung. The purpose had been to rule out cancer, which the hospital’s pathologist had done. There is no evidence he looked for signs of black lung, or even that he knew Fox was a miner. Unknown to Fox, however, Jackson Kelly had obtained the slides of his lung tissue and sent them to two pathologists in its usual stable — doctors whose opinions typically supported the firm’s case.

This time Jackson Kelly didn’t get the answer it wanted. Both pathologists wrote reports indicating the mass likely was complicated black lung — a finding that, if credited by the judge, automatically would have won the case for Fox.

The firm’s lawyers could have accepted the opinions of the doctors they’d relied on so many times before. They could have conceded that Gary’s case had merit and agreed to pay him and Mary $704.30 a month, allowing him to escape the dust destroying his lungs. Even if they chose to fight the claim, they could have allowed their experts to see all of the pathology reports as they formed their opinions.

None of that is what the lawyers at Jackson Kelly did. Instead, the firm withheld the reports; Fox, the judge and the firm’s own consulting doctors had no idea they existed. In the months that followed, a team of Jackson Kelly lawyers built a case around the hospital pathologist’s report and its vague diagnosis of “inflammatory pseudotumor.” They encouraged the court and their own consulting doctors to view the report as the sole, definitive account of what Fox’s lung tissue revealed. Even one of the doctors retained by Jackson Kelly originally thought Fox had black lung. After being given the pathologist’s report, he changed his mind.

Relying heavily on the pathology report, a judge denied Fox’s claim for benefits in 2001, leaving him few options. He had a family to support, and he needed health insurance because Mary had a chronic illness. He went back to the mine, his health deteriorating. For years, no one but the firm knew of the powerful evidence that he had the severe disease and should get out of the mine’s dusty atmosphere immediately.

As the research shows, this was not a singular act, but a pattern of brutal behavior by Jackson Kelly.  It’s how they made the big bucks.

Hamby and the CPI go on to provide the views of judges who feel they have been duped, workers who are struggling to survive without the benefits owed to them, and the families left behind by those who have passed. To paraphrase such a great piece of writing does not do it justice, nor does it have the intended impact.  Below we have provided links for the two already published pieces of the series. Part two deals with John Hopkins’ medical unit rarely diagnosing black lung on account of coal industry pressure.

Breathless and Burdened: Dying from Black Lung, Buried by Law and Medicine

Part One: Coal industry’s go-to law firm withheld evidence of black lung, at expense of sick miners

Part Two: Johns Hopkins medical unit rarely finds black lung, helping coal industry defeat miners claims

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One Comment on “Modern Must-Read: The Systematic Denial of Health Benefits to Black Lung Victims by the Coal and Medical Industries”

  1. The mine workers have to fight these battles alone. The UMWA is supposed to being helping the miners but does not. The only organization with the power to fight for the miners is the UMWA. It gladly takes to dues but does not fight for the health and welfare of its members. Its all talk and no action!

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