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Mine widows left with nothing

After Eudell Dickerson died in 1999 from a roof fall in a Clay County coal mine, his widow, Diana, was promised Workers’ Compensation benefits “for the remainder of her life or until you remarry.”

Following Wetzel John Grubb’s death from asbestosis in 2001, exactly the same promise was made to Sherry, his widow.

But then Workers’ Compensation began applying a new internal “policy statement” issued by agency lawyers on March 10, 2004. It allowed them to strip widows and widowers of benefits on the day their deceased spouses would have become 65.

Denied her monthly check, Diana Dickerson fell behind in mortgage payments. Shortly before this past Thanksgiving, her home was auctioned off on the Raleigh County Courthouse steps, and she was evicted.

Today, Diana lives in a mobile home with her daughter, Bobbie, and her family in Fosterville, near the Boone-Raleigh county border.

Without her compensation check, Sherry Grubb’s finances are in turmoil, and she fears she could lose her home, too — even though she’s still working at the Department of Environmental Protection.

Last week, BrickStreet Insurance, which took over Workers’ Comp on New Year’s Day, issued a press release about helping widows and families of 12 miners killed, and one seriously injured, in the Sago Mine disaster last month.

“BrickStreet has set aside or reserved more than $7 million to pay for the medical, physical rehabilitation and wage replacement benefits to the families,” the release stated.

But BrickStreet didn’t explain when those 12 widows’ benefits would be cut off. (The cut-off age was raised from 65 to 70 by a new law passed in 2003.)

James M. Bennett, 61, was the oldest miner who died at Sago. In nine years, BrickStreet will cut off all benefits to Lily, Bennett’s wife for 43 years. Eight other Sago miners who died were in their 50s.

“The men who died in the Sago Mine left behind notes reassuring their loved ones that everything would be all right,” said Sue Howard, a Wheeling lawyer who represents widows. “What if they knew what the state was trying to do?”

Stephen P. New, a Beckley lawyer who also represents widows who lost their benefits, said the “Workers’ Compensation Commission, in the name of economic development, is seeking to take away from widows what is oftentimes their solitary source of income.”

Diana and Eudell Dickerson

Eudell Dickerson worked in Armco and Peabody coal mines most of his life. He died on Oct. 14, 1999, from an accident at a mine operated by the nonunion Lightning Contractors.

“He didn’t like to work for them, but you do what you have to do,” Diana said. “He had worked union most of his life.

“Eudell was a roof bolter and a big rock fell on him. They flew him down to Charleston Area Medical Center, where he lived for 30 days. He was paralyzed from the waist down.”

Diana and Eudell lived in Rock Creek, south of Whitesville.

“He didn’t drive. So I took him to work on Mondays, took him food on Wednesdays, then picked him up on Fridays. During the week, he stayed in a camper near the mine.

“After he died, they told me I would get a check until I died or remarried,” Diana said.

Eudell would have turned 65 on May 4, 2004.

“I got a letter in December 2004, saying he would have been 65 and I would no longer get benefits. I was getting $1,752 a month.”

After Diana, who is now 58, got her final check a year ago, she had a hard time making mortgage payments on the Rock Creek home they bought in 1991.

Today, she gets a little more than $1,000 a month from Social Security benefits and a modest United Mine Workers widow’s pension.

“The mortgage people who bought the house told me I had to be out by November 21. I didn’t even get all my stuff out of it,” Diana said.

During repairs, her former home caught fire and burned down, destroying everything Diana had left.

Sherry and Wetzel Grubb

Wetzel Grubb worked a lot of jobs, many on construction projects where he was exposed to asbestos, including his work for Tru Temper Corp.

When he died at 62 on June 7, 2001, Wetzel and Sherry had been married for 34 years. Workers’ Comp told Sherry in May 2002 she would begin receiving her widow’s benefits.

In January 2005, she learned she would lose her benefits as of Feb. 28, 2005.

“I am trying to hold on to my house in Dunbar,” Sherry said last week.

“I could have retired in April, but I can’t do that now. When you retire from a state job, your income is cut in half and a lot of that goes to pay insurance. And I have credit card companies calling me every day, at home and at work,” Grubb said.

“They never told us they would cut off our checks. They just came in and pulled the rug right out from under us. If I lose my house, I will blame the governor, the state of West Virginia and BrickStreet.

“Sometimes, you want to give up.”

After Grubb appealed her loss of benefits, the Workers’ Comp Office of Judges ruled in her favor last July, reinstating them. Administrative Law Judge Rebecca S. Charles noted that the original May 20, 2002, order awarding Grubb’s benefits stated that those benefits would continue “until the death or remarriage of the claimant.”

But Workers’ Comp immediately appealed Charles’ ruling, which is now before the agency’s Board of Review. Arguments are scheduled to be heard in the case May 24.

“This case could end up before the Supreme Court,” says John Skaggs, a Charleston lawyer who represents Grubb. “Her appeal has been pending for almost a year without any ruling on a very straightforward legal issue. The delay is very frustrating.”

A legal question

Gregory A. Burton, BrickStreet’s president, defends the policy of cutting benefits to widows and widowers.

“When someone tragically passes away, his widow should have benefits paid for the time the worker would have worked if he had lived,” said Burton, who previously headed the Workers’ Compensation Commission.

“These benefits are not a life insurance policy. They are a wage-replacement policy. They got lifetime benefits in the past. But Senate Bill 2013 [passed in 2003] changed this.

“This is being challenged in the court system,” Burton said. “Whatever the Supreme Court decides, we will abide by that. But [survivors] should not get benefits above and beyond what the person who passed away would have gotten.”

If the courts decide widows and widower should continue to get lifetime benefits, as so many were promised, Burton said, he predicts BrickStreet will have to raise employer premium rates.

Today, the average coal miner in West Virginia earns $55,000 a year, according to the West Virginia Coal Association. A miner killed on the job usually qualifies for the highest level of Workers’ Comp benefits, which are almost $30,000 a year.

“Those benefits are not a dollar-for-dollar replacement,” Burton added. “But they are tax-free.”

But Skaggs says the state statute clearly says the benefits are payable until death or remarriage.

“The Legislature never changed that, and those benefits are not adequate compensation for a widow who has lost many associated benefits like health insurance,” he said. “What the Legislature recognized is that the minimal costs of paying those benefits until death or remarriage is more than outweighed by society’s benefits in helping these widows.”

Workers Comp thinks that the 2003 legislation changed that obligation, but it didn’t, Skaggs said.

“People inside Workers’ Comp said legislation passed in 2003 implied those benefits would stop. But the Legislature never changed the law,” he said. “The Manchin administration is pulling the rug out from all these people retroactively. Governors Gaston Caperton, Cecil Underwood and Bob Wise never accepted that argument.”

New also represents Kathy Sweet of Ansted, who lost her husband, William, 54, in a May 12, 1995, accident at a Meadow River Coal Co. mine. Like Dickerson and Grubb, Sweet received a letter from Workers’ Comp, dated Aug. 22, 1995, stating that she would receive dependent’s benefits “for the remainder of your life until you remarry.”

Now, BrickStreet is telling Sweet she will lose her benefits at the end of 2006, since her husband would have turned 65 if he were still alive.

“We do not know how many widows or widowers this new policy will affect,” New said. “It could be hundreds, or it could be thousands.”

In a petition he filed asking the Supreme Court to reverse BrickStreet’s policy, New wrote, “The West Virginia Legislature, in reforming the Worker’s Compensation system [in 2003] did not change the duration of time [during] which a widow may receive dependent’s benefits.”

Skaggs and New say it’s hard to predict when a final decision will be made on this controversy.

To contact staff writer Paul J. Nyden, use e-mail or call 348-5164.


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