Breathless and Burdened

Published — April 29, 2015

Labor Dept. proposes rule to keep coal companies from hiding evidence in black lung cases

The practice was illuminated in the 2013 Center series, ‘Breathless and Burdened’


Longtime miner Gary Fox underground with the roof bolting machine he operated, driving rods into the mine’s ceiling to prevent a cave-in. Courtesy of Mary Fox

The U.S. Department of Labor wants to stop coal companies from withholding medical evidence from miners seeking financial benefits after being disabled by black lung disease.

The rule, proposed Tuesday, would address a major problem spotlighted in the Center for Public Integrity series “Breathless and Burdened,” which exposed how prominent doctors and lawyers helped coal companies defeat the benefits claims of miners sick and dying of black lung disease.

The Labor Department singled out the case of coal miner Gary Fox, saying it “highlights the longstanding problem claimants face.” The first installment of the Center series featured Fox’s story — and it showed how the coal industry’s go-to law firm, Jackson Kelly PLLC, sometimes withheld crucial medical evidence from miners.

Under federal law, miners who are disabled by black lung, a debilitating disease caused by inhaling dust in coal mines, are entitled to benefits that mining companies must pay. But the companies often fight the miners’ claims, and they almost always have far more money and access to highly-credentialed doctors, giving them a powerful advantage. Previously, the companies’ lawyers could pick the most advantageous pieces of this evidence to submit, while not revealing the rest.

In Fox’s case, he lost after the law firm withheld two key medical reports indicating that Fox had an advanced stage of black lung. To support his family, Fox returned to the mines to work for five more years, getting progressively sicker.

Finally, he no longer could work, so he retired and filed a new benefits claim. Unlike in his previous claim, he was able to find a lawyer to represent him and, after months of fighting with Jackson Kelly, learned of the withheld reports.

Fox won his case in February 2009. Two months later, he died waiting on a lung transplant.

Representatives of Jackson Kelly did not respond to requests for comment. In the past, the firm has said it did nothing wrong in Fox’s case and has argued that it is not required to turn over all of the medical evidence it gathers in the course of defending a claim.

In the Labor Department’s view, this approach presents multiple problems. Many miners are unable to find a lawyer to handle their cases, let alone to fight a well-funded and sophisticated adversary over requests for medical records. Further, the department said, Congress’ intent when it established the black lung benefits system was “getting to the truth of the matte — ver following the technical formalities associated with regular civil litigation.”

Requiring disclosure of all medical evidence “will put all parties on equal footing” and “may lead to better, more accurate decisions on claims,” the department wrote.

The proposal authorizes sanctions for failing to disclose evidence. These could include disqualifying an attorney for the remainder of the case or invalidating a previous denial of benefits. The Center investigation identified cases in which Jackson Kelly refused to comply with an administrative law judge’s order to turn over documents or information, then argued that the judge had no authority to impose sanctions.

A separate provision outlined in the proposed rule would prevent companies from ceasing benefits payments while trying to mount a new legal challenge to a previous award — something the department called a “recurring problem.”

The proposed rule will be open for public comment for 60 days. A spokesman for the National Mining Association said the organization has not yet had time to review the proposal.

Chris Hamby, a former Center for Public Integrity reporter, now works for BuzzFeed

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