Herald-Leader Editorial

Black-lung victims cheated; industry avoids paying miners

November 12, 2013 

The cutthroat tactics used to deny benefits to sick and dying victims of black lung should dash any illusions about miners having a friend in coal companies.

Even for an industry that's notorious for dodging its responsibilities, a yearlong investigation by the Center for Public Integrity and ABC News produced revelations that are shocking and repugnant.

Reporters documented a pattern by the industry's "go-to" law firm, Jackson Kelly, based in Charleston, W.Va., of withholding X-rays, pathology reports and other evidence of black lung in miners seeking benefits through the 40-year-old federal program.

Jackson Kelly lawyers withheld critical evidence not just from judges and miners, records show, but from the firm's own expert witnesses. As a result, even when the Jackson Kelly lawyers knew there was strong medical evidence of black lung, they successfully argued against awarding benefits to suffering miners and their families, who can't afford big-time lawyers, according to the report.

In rare instances when a judge or a miner's lawyer insisted that the firm turn over all its evidence, the reporters found, Jackson Kelly typically settled. This allowed the miner to receive benefits while ending scrutiny of the firm's deplorable tactics.

Jackson Kelly, which insists it did nothing wrong because the medical records were part of its work product and therefore not subject to disclosure, has nationwide offices, including one in Lexington. One of the firm's West Virginia lawyers lost his license for a year as a result of withholding black-lung evidence and three others were scolded by West Virginia's Lawyer Disciplinary Board.

An administrative law judge's ruling that Jackson Kelly had committed "fraud on the court" is under appeal before the 4th Circuit U.S. Court of Appeals in Richmond, Va.

Johns Hopkins Medicine in Baltimore responded more forcefully to revelations that one of its units had become a coal industry tool.

The prestigious institution suspended an X-ray-reading program headed by Dr. Paul Wheeler after the Center for Public Integrity and ABC reported that Wheeler had found not a single case of severe black lung in the more than 1,500 cases decided since 2000 in which he offered an opinion. A finding of severe or advanced black lung automatically triggers benefits. Wheeler has testified that the last time he recalled finding a case of severe black lung was in "the 1970s or the early '80s."

Yet, administrative law judges gave great weight to Wheeler's findings, which proved lucrative as coal companies paid a premium for the Hopkins brand. "For an X-ray reading, the university charges up to 10 times the rate miners typically pay their physicians," the center reports.

In other words, rather than pay, say, $8,500 a year to an employee who will slowly smother because of his years working in dust-filled mines, the industry would rather pay lawyers and doctors to cheat sick miners of benefits. With friends like that, who needs enemies?

Black lung has been on the rise, even as coal production in Appalachia declines, which makes this reporting especially timely.

In response, U.S. Reps. George Miller, D-Calif., and Joe Courtney, D-Conn., called on the Labor Department's inspector general to investigate whether miners and their families are being cheated. Some in Congress are showing renewed interest in enacting more effective dust-control laws.

As disturbing as these revelations are, they fit an all too familiar pattern: The coal industry always shifts its costs onto others, whether it's a miner paying for poor workplace hygiene with his lungs or the public paying for coal industry shortcuts with poisoned water and air, birth defects and disease.


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