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Ex-miner seeks to break black lung backlog

By Ken Ward Jr., Staff writer
AP photo
Senate subcommittee on employment and workplace safety Chairman Robert Casey, D-Pa., greets retired coal miner Robert Bailey, of Princeton, who suffers from black lung disease, before Bailey testifies Tuesday on Capitol Hill in Washington.
John Cline (from left), an attorney from Piney View, West Virginia, with fellow witnesses West Virginia University Department of Medicine pulmonary section chief Jack Parker, of Morgantown, West Virginia; Bailey; and Robert Briscoe, principal and senior consultant with the Milliman actuarial services firm in New York City, testifies during a U.S. Senate subcommittee hearing on black lung benefit delays.
Parker testifies.

CHARLESTON, W.Va. — A retired West Virginia coal miner on Tuesday asked Congress to help streamline the process of obtaining black lung benefits, and the Obama administration insisted it is taking steps to fix longstanding abuses outlined in a Pulitzer Prize-winning series of reports.

“Living with black lung is thinking about every breath you take,” Robert Bailey, of Princeton, said in Washington. “Policies and laws need to be changed to give hope and life to those who don’t have time for stall tactics.”

Bailey testified as part of a Senate health, education, labor and pensions subcommittee hearing called “Coal Miners’ Struggle for Justice: How Unethical Legal and Medical Practices Stack the Deck Against Black Lung Claimants.” The hearing was called to examine the U.S. Labor Department’s response to a scathing series by the Center for Public Integrity that called attention to the tactics of lawyers and doctors who help coal companies fight black lung benefit claims.

“Too many coal operators have put profits ahead of the safety and health of the miners they employ,” said HELP subcommittee Chairman Tom Harkin, an Iowa Democrat whose father was a miner.

“And when these miners retire after years on the job, the companies and their legion of consultants work together to deny miners and their families a fair shot to receive benefits to which they are entitled,” Harkin said. “They use every trick and resource advantage to game the system long enough for miners to give up hope. Sadly, this playbook is not only familiar, but effective.”

The news reports that prompted the Senate hearing focused in part on the actions of coal industry lawyers who withheld key medical evidence while representing companies that were opposing the awarding of benefits to miners. In one such case, the 4th U.S. Circuit Court of Appeals ruled in January that while the actions of lawyers from the Jackson Kelly law firm were “hardly admirable,” they did not rise to the level of “fraud upon the court.”

In May, the Obama Labor Department announced it was working a new rule that would aim to help miners avoid what happened in that case.

Deputy Labor Secretary Christopher Lu said that the agency plans to address whether all parties involved in a claim must disclose medical evidence they obtain, the fee schedule used to pay miners’ medical expenses related to black lung, and a liable coal company’s responsibility to pay benefits while appealing benefit rulings.

Lu also said that the department has notified dozens of miners whose claims were denied based in part on the X-ray interpretations by Johns Hopkins Dr. Paul Wheeler — whose actions were questioned by the Center for Public Integrity’s stories — telling those miners they could resubmit their benefit claims.

Labor Department officials said they are also trying to address a backlog of roughly 3,000 pending black lung cases with a proposal for an 11.5 percent increase for the agency’s Office of Administrative Law Judges. But Sen. Robert Casey, a Pennsylvania Democrat and chairman of the HELP subcommittee, said he doesn’t think that will be enough money to clear the backlog.

Reach Ken Ward Jr. at kward@wvgazette.com, 304-348-1702 or follow @kenwardjr on Twitter.


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