When coal miners can’t breathe, getting compensation is an uphill legal battle
When coal miners can’t breathe, getting compensation is an uphill legal battle
For coal miners, black lung disease is a hazard of a career spent underground. Under federal law, miners are eligible for compensation, but qualifying for that comp means going toe-to-toe with law firms hired by coal companies — and the miners often lose. New York Times journalist Chris Hamby describes this struggle in his book, “Soul Full of Coal Dust: A Fight for Breath and Justice in Appalachia.” The following is an excerpt. Click the audio player above to hear Hamby’s interview with Marketplace host Kai Ryssdal.
John Cline looked across his kitchen table at a gaunt man with a countenance etched by a life of hard labor. The two had spoken by phone, but now that they were face to face for the first time, the man’s rapidly declining health became apparent. Each breath, it seemed, required more effort than the last. John had heard such strained exertions many times before, and he knew the suffering these sounds signified.
As each man appraised the other, the faint gray light of a frigid day in the southern West Virginia coalfields fell on the smooth maple top, fashioned by John’s middle son, that adorned the table John’s grandfather had made out of fir. Wind gusted through the patch of land where John and his wife kept a vegetable garden in warmer months. The trees bounding his property to the south had shed their foliage, revealing the precipice preceding the sharp plunge to the Piney Creek Gorge a thousand feet below. In the distance, benches of bare earth lined a stretch of the hillside — the scars of long-finished strip-mining. A railway ran through the gorge, and sometimes when John went for walks in the trails he kept clear behind his house, he still heard the coal trains rumbling through.
This land of scarred beauty had forged both John and the man now seated in his kitchen, a longtime coal miner named Gary Fox. Though they had started life in different worlds, both had come of age amid the political tumult of the late 1960s and the historic coal miners’ rebellion that had swept southern West Virginia at the time. Both had made lives for themselves and their families here in the heart of Appalachia. And both had spent decades working, straining against setbacks, building something bigger than themselves.
John was a rarity here in the coalfields: a lawyer who was willing to help coal miners navigate an abstruse legal system in pursuit of modest monthly payments and medical coverage as recompense for the disease that robbed their breath, the old scourge with the disturbingly accurate name “black lung.” Most lawyers wouldn’t touch these cases. They were complex, time-consuming, and fiercely contested; coal companies and their lawyers made sure of that. Success rates were low, and even after a win, a miner’s lawyer had to prevail in yet another round of legal combat against the company to collect fees that barely kept the lights on.
Yet this was the only type of case John took, the only type he’d ever wanted to take. It was why, a few years earlier, he had gone to law school at age fifty-three and emerged with a load of student debt he would still be paying off long after others his age had retired.
Law was his fourth vocation. The first three — community organizer, carpenter, and rural medical-clinic staffer — might suggest the incongruous roving of a restless soul, but John saw each of them, as well as his current one, as variations of the same job, which he described as “trying to be of use.”
Here in the house he’d built with his own hands in a small community on the outskirts of Beckley, the nearest thing to a big city southern West Virginia coal country had, he ran a solo practice. He had no assistants, no secretaries, no paralegals; each case was John versus the coal company. His kitchen was the de facto meeting room, and directly overhead on the second floor was his office, a small space covered in manila folders bearing the names of sick miners or their widows, each file stuffed with legal and medical arcana designed to befuddle and discourage those who couldn’t find a lawyer like John. Spare shelf space held family photos, and on the wall hung a portrait of Mary Harris “Mother” Jones, the labor activist and “miners’ angel” who had adopted West Virginia as her second home.
A famous quote of hers was inscribed beside her bespectacled face: Pray for the dead and fight like hell for the living.
John’s comportment more closely resembled that of his clients than that of his fellow members of the bar. He favored corduroys or jeans and plaid button-downs. His mop of brown-gray hair and soft voice conveyed a certain boyishness. He had the sturdy frame and callused palms of a laborer.
Gary had found him only through a stroke of luck: a recommendation from a legendary doctor who had been conducting pioneering research into black lung and treating miners for more than forty years at a small clinic in Beckley. John had liked Gary from the first time they spoke on the phone about seven months earlier, but before he agreed to take the case, he needed to gauge whether they would have any shot at winning. Together in John’s kitchen, the two men were now trying to figure that out.
This was one of the last stages in a system John had set up; the goal was to take as many cases as he could while making sure his one-man operation didn’t get hopelessly overstretched. He typically juggled about fifty cases, their deadlines staggered to avoid everything hitting at once, and each week he fielded about ten more calls from people who hoped he’d represent them.
When a potential client called, the first step was to explain the peculiar legal gauntlet that miners and widows had to traverse. For the few lawyers like John who even considered helping a miner file for benefits, these preliminary conversations could be taxing, as they often engendered frustration for the caller — not at the lawyer but at the demoralizing realization of how the system for awarding claims functioned.
The process wasn’t like going to civil court and presenting a case to a jury, and it wasn’t like filing for workers’ compensation. It was somewhere in between, a byzantine administrative system that combined the contentiousness of a multimillion-dollar lawsuit with the lesser payouts of a disability-insurance claim — in other words, the worst of both systems, from a miner’s perspective. The fact that a miner was struggling to breathe because of black lung caused by years of inhaling coal dust didn’t necessarily translate into a win; he had to clear the high bar of proving “total disability.” There were no settlements or partial awards; each case was an all-or-nothing fight to the end.
After explaining these daunting realities to the caller, John would pull out a piece of paper, run through a list of basic questions, and jot down the answers, with key dates and facts underlined: age, years of mining experience, specific job duties, smoking history, past medical diagnoses or legal claims. Sometimes it was clear from the start that the caller had no case, and John would explain why. But, he’d tell the miner, the disease might worsen, even without any more dust invading the lungs, so keep monitoring it with periodic X-rays and lung-function tests. Don’t hesitate to call back.
If the basic information pointed to a potentially viable claim, John explained what would happen next. The miner had to fill out forms and submit them to the U.S. Department of Labor, which processed these claims. That would unleash a flood of paper from bureaucrats, companies, insurers, and lawyers, and the miner would have to undergo two different medical exams — one by a doctor chosen by the miner from a government-approved list and one by a doctor chosen by the coal company.
If the case cleared the first stage — a determination made by a Labor Department claims examiner, who, at the time, turned down about 85 percent of claims — the coal company’s lawyers almost certainly would appeal the decision to an administrative law judge under the Labor Department umbrella. These lawyers would then send copies of the miner’s X-rays, CT scans, lung-function tests, and any other medical records to an established network of impeccably credentialed physicians — including some at renowned institutions — who, for a fee, would review them and submit reports that often poked holes in or outright blew up the miner’s claim. A miner might be able to afford an additional report or two, but the medicolegal arms race was inevitably one-sided. If a judge nonetheless upheld the award of benefits, the company lawyers could appeal to a higher administrative court, then to a federal appeals court, then possibly to the U.S. Supreme Court.
As the process dragged on, miners sometimes withered and died, leaving their widows to fight on if they could. All of this battling was over monthly payments set by law at just over a third of the salary of an entry level government employee — in 2007, it was $876.50 for a miner and his wife — plus medical expenses for treatment related to black lung.
Word had spread through the coalfields that companies would rather spend stacks of cash fighting each case to the bitter end than pay the modest benefits to their former employees. No wonder, then, that many miners didn’t bother with the system or that most lawyers didn’t want to wait for an uncertain payout that might amount to fifteen thousand dollars for five years of work, if they were fortunate.
John had gone through these daunting realities with Gary when he’d first called in June 2006. Gary wasn’t discouraged; it was just another trial for a man who’d endured more than his share. He had worked in coal mining for more than thirty years, but his breathing had finally gotten so bad that he thought he had no choice but to retire early and file for benefits, he told John. He’d call back when he did.
John wrote all of this down and stuffed the paper inside a manila folder labeled dol phone contacts. This was where logs of the many calls with potential clients resided until John had enough information to decide whether to take the case. If he eventually did agree to represent the miner, he’d grab a new manila folder, write the client’s name on the cover in black Sharpie, put the phone logs inside, and place this fresh case file among the others, which filled shelves lining the office walls, covered the small sofa by his desk, and spilled onto the steps leading up to a small attic where old case files sat packed in boxes and shoved back in a crawl space.
Gary called again in November after he’d filed the forms that set the wheels in motion at the Labor Department’s office in the state capital of Charleston, then again in December after he’d been examined by the doctor he’d chosen. Now the paperwork was starting to arrive at the house in Beckley where he and his wife, Mary, lived: a notice that his former employer was contesting his claim, an intimidatingly worded list of twenty-seven questions seeking personal information and medical records dating back decades.
John took it all down; the phone log grew longer. Gary’s case was not an obvious loser, he thought. It was time they met.
Excerpted from “Soul Full of Coal Dust: A Fight for Breath and Justice in Appalachia” by Chris Hamby. Copyright © 2020. Available from Little, Brown and Company, an imprint of Hachette Book Group, Inc.
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