westmoreland coal
==
https://www.publicintegrity.org/2013/10/29/13585/coal-industrys-go-law-firm-withheld-evidence-black-lung-expense-sick-miners
...at least 15 years since Fox first noticed signs of black lung disease. It started with shortness of breath. Then a cough that yielded black mucus. By 1999, his symptoms convinced him to apply for federal benefits. A doctor certified by the U.S. Department of Labor examined him and diagnosed the most severe form of the disease, known as complicated coal workers’ pneumoconiosis. The government ordered his employer, a subsidiary of behemoth Massey Energy Co., to begin paying him monthly benefits, but, as is almost always the case, the company appealed.
Gary and Mary now found themselves visitors in a foreign world — one populated by administrative law judges who must make sense of reams of medical evidence, sophisticated legal arguments and arcane rules; coal-company lawyers who specialize in the vagaries of the system and know how to attack claims; and doctors who consistently find cause to diagnose almost anything but black lung.
Among the most prominent denizens of this world are the attorneys in the federal black lung unit of the law firm Jackson Kelly PLLC. For almost two centuries, the firm has served the coal industry. It is the go-to place for many of the industry’s giants when they want to beat back a miner’s claim for benefits.
Jackson Kelly, with offices throughout Appalachia, as well as in Denver and Washington, D.C., defends companies accused of polluting the environment, marketing dangerous drugs or discriminating against workers. It helps corporations avoid regulations, drafts bills and lobbies legislators. Its bailiwick, though, is mining. U.S. News & World Report recently named it the nation’s top firm in mining law. Jackson Kelly’s name is on the lips of clinic workers, miners and lawyers throughout Appalachia and is emblazoned atop an office overlooking the Monongahela River in Morgantown, W.Va.
Now, with government scientists documenting a resurgence of black lung disease, the firm’s legal strategy — including, the Center for Public Integrity found, a record of withholding evidence — could have significant consequences for sick miners and their families.
The Robert C. Byrd Federal Building and U.S. Courthouse in Beckley, W.Va., where Gary and Mary Fox, unable to find a lawyer, faced a seasoned Jackson Kelly attorney during a 2000 hearing. GSA.gov
More from 'Breathless and Burdened'
Part One: The Law Firm
The Center for Public Integrity reports how a prominent law firm has withheld evidence of black lung in cases over the years, helping to defeat the benefits claims of sick miners.
Part Two: The Doctors
The Center, in partnership with ABC News, reports on the crucial role played by doctors — including a unit at the nation’s top-ranked hospital — in helping to beat back miners’ benefits claims. Reports will appear on publicintegrity.org and abcnews.go.com, and televised segments will air on World News and Nightline.
Part Three: The Next Battleground
The Center reports on the newest battle in the long-running war between coal companies and miners, revealing the latest industry effort to defuse emerging scientific evidence and contain its liabilities.
Jackson Kelly PLLC headquarters in Charleston, W.Va. Google Maps
On this September morning in2000, 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.
What happened to Gary Fox was not the result of a rogue attorney or singular circumstances. It was part of a cutthroat approach to fighting miners’ claims that Jackson Kelly has employed to great effect for decades, an investigation by the Center for Public Integrity has found. Some of the firm’s tactics go beyond aggressive advocacy, crossing into unethical behavior, according to current and former judges, lawyers and state disciplinary officials. As a result, sick and dying miners have been denied the modest benefits and affordable medical care that would allow them to survive and support their families.
The role of lawyers in orchestrating sophisticated legal strategies to defeat claims for benefits is just the first chapter in the story of a system in which well-paid specialists thrive as miners struggle, the Center’s yearlong investigation, Breathless and Burdened, found. Coal companies rely on a cadre of doctors with prestigious affiliations, including a unit at the nation’s top-ranked hospital, to trump the opinions of miners’ physicians. Experts for hire continue a century-old tradition: denying scientific evidence that black lung can assume different appearances in different people, locking an entire class of sick miners out of the benefits system.
Jackson Kelly, documents show, over the years has withheld unfavorable evidence and shaped the opinions of its reviewing doctors by providing only what it wanted them to see. Miners, often lacking equally savvy lawyers or even any representation, had virtually no way of knowing this evidence existed, let alone the wherewithal to obtain it.
“I’m utterly dumbfounded. I just cannot conceive of attorneys doing that. … That’s really misleading the court. It’s misleading the witnesses.”
-Retired Administrative Law Judge Edward Terhune Miller, after learning evidence had been withheld from him more than a decade earlier.
By the numbers: respiratory deaths, 2000-2010
55,421
All work-related lung diseases
29,002
Mesothelioma, a form of cancer caused by breathing asbestos fibers
26,632
Pneumoconioses, diseases in which dust, such as coal, causes scarring of the lungs
Source: NIOSH; Note: Some deaths may be from multiple causes
Key findings:
Jackson Kelly PLLC, long the go-to law firm for coal companies seeking to beat back miners’ claims for federal black lung benefits, has a decades-long record of:
Withholding key evidence. The firm has shielded reports generated by doctors of its choosing when even they found the miner had black lung. Of 15 cases reviewed in detail by the Center — dating from the 1980s to the present — the firm withheld reports in at least 11. Jackson Kelly has argued, sometimes successfully, that there is nothing improper about its approach, saying it submits evidence that support its case.
Presenting incomplete or potentially misleading evidence. The firm has allowed judges and consulting doctors to form opinions based on only the reports it chose to provide, even as it withheld other documents that cast doubt on what was in the record.
Conceding the case and avoiding disclosure. In the rare instances when a miner’s lawyer pushed for documents to be turned over and a judge commanded the firm to do so, Jackson Kelly, on behalf of its client, sometimes conceded the case, in theory rendering disclosure moot. This happened in six of the cases reviewed by the Center.
In the rare cases in which miners’ lawyers have pushed for access to these materials and a judge has ordered disclosure, Jackson Kelly has fought back aggressively, arguing that it has the right to withhold them. The firm has asked higher courts to intervene and accused judges of bias. It has defied court orders, knowing administrative law judges have no contempt powers to enforce their commands, or conceded the case rather than turn over evidence.
In published decisions, judges have called the firm’s defenses of its actions “ludicrous” and “flimsy at best.” “This is pretty shocking,” a current judge wrote of Jackson Kelly’s behavior in a 2009 email obtained by the Center. “It appears to represent a long-standing pattern of misconduct.”
Still, judges generally haven’t been receptive to arguments that Jackson Kelly’s handling of a particular case is symptomatic of anything broader or that disciplinary action is warranted.
Fox’s case, still unresolved, could change that. A judge deemed Jackson Kelly’s actions in the case a fraudulent scheme that threatened the integrity of the judicial system. A split appeals court vacated that ruling, and the decision is now on appeal. After the Center contacted the West Virginia Office of Disciplinary Counsel and asked whether action would be taken, the office opened investigations into three Jackson Kelly lawyers who were involved in Fox’s case. To date, they have not been charged with any wrongdoing.
The judge who denied Fox’s claim in 2001, Edward Terhune Miller, recently retired and, in an interview with the Center, learned what had been shielded from him more than a decade earlier. His eyes widened, and, for a moment, he was speechless.
“I’m utterly dumbfounded,” he said. “I just cannot conceive of attorneys doing that. … That’s really misleading the court. It’s misleading the witnesses. It’s tainting the witness testimony.”
Jackson Kelly’s general counsel, on behalf of the firm and the individual attorneys contacted by the Center, declined repeated interview requests and would not discuss specific cases or general practices.In court filings, the firm has argued that there is nothing wrong with its approach and that its proper role is to submit the evidence most favorable to its clients.
A spokesman for Alpha Natural Resources, which purchased Massey Energy and is now opposing Fox on appeal, declined to comment on the case while it is ongoing.
Until now, Jackson Kelly’s conduct in black lung cases has remained largely buried in voluminous files that are confidential because of the private medical and financial information they contain.
Over the past year, however, the Center has identified key cases and obtained written permission from miners or their surviving family members to view their entire case files. These 15 files span 40 years and include hundreds of thousands of pages. The Center also reviewed the limited publicly available information on dozens more of the firm’s cases.
“Employer's ‘zealous’ representation strategy instills uncertainty and cynicism into a program intended to compensate miners disabled from black lung disease …” - ALJ Thomas Burke decision in the Gary Fox case, February 9, 2009
In court decisions and emails obtained by the Center for Public Integrity, some judges have criticized Jackson Kelly’s approach in federal black lung benefits claims.
Breathless and Burdened
Dying from black lung, buried by law and medicine.
Stories in this series
Labor Department unveils rule to protect coal miners following Center investigation
By Chris Hamby May 27, 2014
Coal industry's go-to law firm withheld evidence of black lung, at expense of sick miners
By Chris Hamby October 29, 2013
Johns Hopkins medical unit rarely finds black lung, helping coal industry defeat miners' claims
By Chris Hamby, Brian Ross and Matthew Mosk October 30, 2013
As experts recognize new form of black lung, coal industry follows familiar pattern of denial
By Chris Hamby November 1, 2013
Class-action lawsuit filed against Johns Hopkins Hospital over black lung program
By Chris Hamby November 2, 2016
Johns Hopkins terminates black lung program
By Jamie Smith Hopkins September 30, 2015
'Sweeping reforms' proposed for black lung benefit program
By Jim Morris September 29, 2015
Labor Dept. proposes rule to keep coal companies from hiding evidence in black lung cases
By Chris Hamby April 29, 2015
Much room for improvement in flawed black lung benefits program, audit finds
By Jim Morris April 13, 2015
Years after black lung claim was wrongly denied, coal miner gets his due
By Chris Hamby November 6, 2014
Click here for more stories in this investigation
These documents reveal a struggle that has been waged out of public view for more than three decades between a handful of lawyers representing miners and the nationally prominent firm. In at least 11 of the cases reviewed by the Center, Jackson Kelly was found to have withheld potentially relevant evidence, and, in six cases, the firm offered to pay the claim rather than turn over documents as ordered by a judge.
Other workers’ compensation programs use a panel of independent medical experts, and some judges have suggested rules requiring both sides to disclose all of their medical evidence. Such suggestions have fallen flat in the federal black lung system, where fights over evidence play out on a case-by-case basis.
The integrity of the program created more than 40 years ago is arguably more important now than in years. Government researchers have documented a revival in the disease since the late 1990s, and the number of claims filed with the Labor Department has increased in recent years. After decades of decline in the disease’s prevalence, government surveillance now indicates that more than 6 percent of miners in central Appalachia are afflicted with black lung, which is increasingly affecting younger miners and taking a new, more aggressive form. Researchers suspect this is an undercount.
Though conditions have improved since landmark 1969 legislation, today’s roughly 85,000 U.S. coal miners face new dangers posed by an increasingly toxic mixture of dust generated by advanced machines that rapidly chew through coal and rock. For an average wage of about $25 an hour, they risk explosions, rock falls, fires and disease.
In the past five fiscal years, the Labor Department has issued initial decisions in more than 23,000 claims, and the proportion of miners who win their cases remains low. During the 2012 fiscal year, about 14 percent of claims led to an award by the Labor Department at the initial level. The real number, after appeals, is likely lower, though no definitive statistics are available.
Coal companies appeal almost every award, and this is when lawyers like those at Jackson Kelly typically develop mounds of evidence. Even if a miner prevails before a judge, the decision must get past an administrative appeals board with a record of vacating awards, often for highly technical reasons. Four of the board’s five members were appointed under the Reagan or George W. Bush administrations.
The administrative court system, originally meant to benefit miners, has evolved into a byzantine maze of seemingly endless litigation with its own rules and peculiarities that can befuddle even experienced lawyers. Much more than in civil court, the balance of power is tipped in favor of defendants, and cases receive little outside scrutiny.
Fewer than one-third of miners have a lawyer at the initial stage of their cases, Labor Department statistics show. Coal companies and their insurers, however, are almost always represented by lawyers who specialize in black lung claims.
As perhaps the preeminent federal black lung defense firm, Jackson Kelly’s legal strategy offers a window into an opaque, highly technical world that touches thousands of lives each year. In the cases reviewed by the Center, the firm has argued that its tactics are entirely proper. Lawyers and judges have said the behavior revealed in these known cases likely has occurred on a widespread basis. “They played hardball,” recently retired judge Daniel Leland told the Center, calling the firm's approach “an all-out effort to win every case.”
But in Gary Fox’s case, events unfolded that the firm’s lawyers may not have anticipated. Unlike many miners, Fox eventually would connect with a tenacious lawyer — a carpenter-turned-clinic-worker-turned-attorney practicing out of his home in rural southern West Virginia. These two men would challenge the powerful firm. Even as coal dust consumed his lungs and he waited for a transplant he hoped would save his life, Fox planned to fight.
Appalachian coal miner Gary Fox's widow, Mary Fox Chris Hamby/Center for Public Integrity
Gary Fox and his daughter, Terri Smith Courtesy of Terri Smith
I. Discovery
Good money, at a price
...
https://insideclimatenews.org/news/07092017/coal-company-fights-black-lung-medical-benefits-appalachian-miner
WISE, Virginia—Retired coal miner Bethel Brock proudly shows the vegetable garden where he grows potatoes, onions, corn, butter beans and other greens for the dinner table. He's in that patch nearly every day hoeing, shoveling—and struggling just to breathe.
Brock, a soft-spoken 77-year-old, has black lung disease from decades working in the coal fields of Virginia.
When his chest constricts and he becomes so winded that he can no longer stand, he slowly folds his body like a collapsing accordion, feeling more dread than discomfort.
"I have to stop right where I am and sit in the dirt," he said. "It feels like I'm suffocating."
Brock was diagnosed in 1982 with the early stages of black lung, a progressive illness common in coal miners. It eventually robs the lungs of the ability to hold air. In 2003, he began battling the Westmoreland CoalCompany, its insurance carrier and their legion of lawyers and doctors for black lung benefits.
The company successfully fought him 10 times by maintaining he is not seriously stricken with the incapacitating disease despite nearly two dozen findings to the contrary by his doctors—and one by a doctor hired by the company, which it did not disclose to a ...
Earlier this year, it looked as though Brock would finally win when the examiner ruled him eligible for benefits. But several months later, she inexplicably reopened the case and reversed herself on a technicality: The latest X-ray documenting the progress of his disease hadn't been stamped with the date it was taken. Once again Brock had lost in a system, created by federal law, designed to be adversarial and seemingly tilted in favor of industry.
But when InsideClimate News began asking questions, there was yet another surprising development: A supervisor decided the latest decision was "in error" and notified Brock he would be getting benefits after all. A U.S. Department of Labor spokeswoman then asked if ICN would be changing the focus of this story about the black lung benefits system.
Jennifer Grafton, Westmoreland's chief administrative and legal officer, said she was bound by privacy issues and could not talk about Brock's case. Colleen Smalley, the district director who overruled the examiner, refused to answer questions and hung up on a reporter.
Brock's 14-year fight with Westmoreland is typical of the David-and-Goliath battles coal miners face when seeking black lung benefits, which are paid by the company and include a monthly stipend and medical care for pulmonary illnesses. While thousands of miners and their survivors can struggle for decades to get benefits, coal companies and their insurers use every legal defense allowed under the Black Lung Benefits Act to deny them.
The companies engage high-profile law firms that in turn employ a cadre of doctors, setting the stage for protracted battles of conflicting medical opinions. Miners, meanwhile, are often overmatched because few lawyers will take their cases. Attorneys are barred from charging plaintiffs fees, meaning they receive modest compensation, and only if they win.
Over the last decade, 52,537 miners have applied to the Labor Department for black lung benefits. The department determined that only 7,252, or about 14 percent, were eligible, according to its data. The industry then challenged 70 percent of those claims, often denying the presence of the disease. It prevailed more than half the time.
In other words, of more than 52,000 claims, fewer than one in 10 was granted a disability award, despite the legal presumption that a miner with 15 years or more of service in the mines with lung problems has black lung as a result of his work. While rules were changed in 2000 to help level the playing field for miners, advocates, lawyers and statistics show companies still winning.
"The industry's tactic seems to be to just keep appealing until the miner or miner's wife dies or gives up," said Shannon Bell, an associate professor of sociology at Virginia Tech who has studied the impacts of the coal industry on the people of Appalachia.
This is just one front in wide-ranging battles by fossil fuel companies of all types to protect their bottom lines and their central role in providing America's energy.
"The fossil fuel industry thinks about the world differently than we do," said Brian O'Neill, who led a courtroom fight against Exxon on behalf of Alaskans devastated by the Exxon Valdez oil spill. "It's about protecting the company and invoking a kind of immunity that the world depends on their product. They are nation states and they decide what is fair treatment."