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 Coal Company, 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 U.S. Labor Department examiner deciding his case.
[embedded content]
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.”
The conflicts rage in Washington, where the industry works to undermine environmental regulation, climate policy and science; in state capitals, where it seeks to overturn laws supporting renewable energy; and in the courts, where, for example, ExxonMobil tries to foil a fraud investigations by state attorneys general. Many of these skirmishes, like thunder and lightning in distant storm clouds, seem far removed from the lives of everyday folks.
But sometimes, such as when an energy company sues a Texas couple and their environmental consultant for defamation for claiming its fracking operations contaminated their residential well, or when a Louisiana family faces confiscation of their land after they sue over leaking oil pipelines, the fight can get very personal.
Nothing seems quite as personal as the struggles of Brock and fellow black lung victims to get benefits, including health care that can mean the difference between life and death.
Brock’s Story: A Long March Toward Disability
Bethel Brock is slender with a soft, deliberate voice. He dropped out of Kelly High School at 15 to go into the mines with his dad to help support his family. In 1958, his father was killed in a traffic accident, and Brock, just 18, was trapped in a life underground, working for $8 a day to help his widowed mother.
“Coal jobs is all there were in these mountains,” he said. “There was nothing else to do, especially with no education.”
Brock didn’t like mining, so he taught himself to be a mechanic and began working on mine equipment and driving coal trucks. He was out of the coal shafts, but it wasn’t steady work, and he wasn’t earning much.
When he married at age 20 and became a father, the mines beckoned again.
In 1968, at 28 with three children and another on the way, he hooked on with Westmoreland at its Wentz mine, hard by the Virginia-Kentucky border. The company had operations scattered across the country, and Brock did his small part in mining billions of tons of coal worth billions of dollars.
He called the Westmoreland job a Godsend because of the pay and benefits. One of the first things the company did was cover the hospital bills for his fourth child.
In the deep mines, it was impossible not to breathe coal and rock dust so dense it becomes an opaque curtain, like a widow’s veil. At the end of the day, Brock emerged so black that, when he smiled, his teeth shown brilliant against his face.
“I knew what I was breathing, but I didn’t have a choice,” he said. “When you have a family to feed, you think about that first and not about the danger.”
Black lung—known medically as coal workers’ pneumoconiosis—can lurk for years and sometimes decades in a miner’s body before symptoms emerge.
Coal dust gradually builds up in the lungs and cannot be removed by the body. Over time, it leads to inflammation, scarring and loss of tissue and elasticity so that the lungs cannot fill with air. They turn from a rosy pink to black as the disease progresses.
Brock was feeling fine the day in 1982 he had a routine physical and chest X-ray as part of a National Institute for Occupational Safety and Health program. There was nothing that suggested the results would be anything but negative as they had been for years.
But this time, the X-ray showed spots on his lungs. He remembers looking at the X-ray and thinking the white spots looked like BB holes against a black target. It was the first sign of the irreversible disease that would define the rest of his life.
The diagnosis was stunning—and numbing: Would the disease kill him? How could he care for his family? What if he’d never become a miner? What now?
“When you hear something like that, it changes your life,” he said.
Brock was in his early 40s and the father of seven children, four girls and three boys between the ages of 5 and 18.
“At a moment like that, you think about a lot of things,” he said. “But more than anything else, I thought about how long could I keep providing a paycheck for my family.”
The diagnosis would ultimately be his ticket out of the mine.
Federal laws designed to safeguard miners mandate that someone diagnosed with black lung be given opportunities to work above ground.
Backed by the United Mine Workers of America, a union Brock lauds for its tireless fight on behalf of miners, he was given a job in 1985 on the surface processing mined coal.
For the next 14 years, he still breathed coal dust, but less than in the mines. And each year, X-rays showed a slow progression of the disease; an agonizing march toward total disability—and maybe death.
Between 2001 and 2015, 8,348 deaths were attributed to black lung, according to data from The National Institute for Occupational Safety and Health. More than 70 percent of the deaths were among people older than 75.
Working for Westmoreland was a good job, though Brock says he now believes his loyalty and hard work meant nothing to the company. That was clear to him when it began fighting his black lung claim.
“They turned against me like I was nothing but a used piece of equipment to be put on the junk pile,” he said.
While Grafton, the Westmoreland official, wouldn’t comment on Brock’s case, she defended the company’s approach to black lung claims.
“Each claim is handled on a case-by-case basis,” she said. “There certainly isn’t a blanket policy to deny every claim and make everyone fight.”
She said Westmoreland relies on outside experts she declined to identify, including doctors, to advise about each case. “Once we have that information, we make a decision on how to proceed,” Grafton said.
A ‘Cottage Industry’ Against Coal Miners
Coal companies and their insurance companies have superior resources to mount sustained legal resistance at a time when recent federal research shows black lung is affecting a higher percentage of miners than at any time since the 1970s.
Miners, advocates and attorneys immersed in prolonged black lung legal battles say the system was almost perversely set up to deny benefits to black lung victims.
“There is a cottage industry of lawyers and doctors working against the miners, to do nothing but reject black lung claims,” said Dr. Joe Smiddy, a Kingsport, Tennessee, pulmonologist who has been treating coal miners for decades.
“What we are seeing is the industry denying the science and reality about the dangers of black lung as a disease in the same way the tobacco industry denied the danger of smoking,” he said.
The companies often spend tens of thousands of dollars on lawyers and expert medical witnesses to attack a single claim. Although the monthly benefit pays $651 for a single miner or $976 for a miner and spouse, it’s the requirement that all of a miner’s medical expenses associated with black lung be covered that spurs such ferocious opposition.
The medical benefits include everything from prescription inhalers to lung transplants, which can cost $1 million or more.
Since 2000, incremental changes in federal regulations have somewhat leveled the field for applicants. Three of the most significant changes include limiting the number of X-ray exams that can be presented as evidence to two, accepting the presumption that 15 years of work underground is the cause of any respiratory illness, and requiring that medical evidence developed by coal companies be turned over to the miner.
The limit on X-rays means companies can no longer use their resources to overwhelm miners with expert opinions.
The 15-year presumption shifts the burden of proof from the miner to the company.
The disclosure requirement ends a practice under which lawyers for coal companies withheld medical evidence unfavorable to their clients.
Stephen Sanders, a lawyer and director of the Appalachian Citizens Law Center in Whitesburg, Kentucky, who has represented miners in black lung cases for 25 years, welcomed the rule changes but said he has not seen much change in the success rate for his clients.
“These operators avail themselves of every legal avenue available to them,” he said. “Opposing claims is an automatic response that doesn’t depend on medical evidence or the obvious suffering of a claimant.”
After Brock’s black lung disease had progressed to the point where he said he became disabled, he filed a claim with the U.S. Department of Labor’s Division of Coal Mine Workers’ Compensation in 2000. He was denied and didn’t re-file until three years later when his symptoms worsened.
The second claim was approved in 2003, triggering the 14-year battle with Westmoreland.
Westmoreland’s argument rested on alternate interpretations of Brock’s X-rays by doctors hired by the company. They said there was no indication he was suffering from black lung disease.
“Mr. Brock does not have any respiratory disability from any cause including coal workers’ pneumoconiosis,” read notes written in 2006 by a doctor hired by the company.
The doctor went further, suggesting Brock’s health problems were related to heart disease and high blood pressure.
“Both of these conditions of the general public at large are unrelated to the inhalation of coal mine dust and coal workers’ pneumoconiosis,” the doctor wrote.
Another doctor hired by the company said Brock was healthy enough to go back to work in the mines.
Companies routinely offer different explanations for miners’ symptoms, blaming them on smoking, tuberculosis, pneumonia and even bat guano inhaled from the mines. Some have suggested the symptoms are merely psychosomatic.
But no less than seven doctors since 2003 have looked at the spots on Brock’s X-rays and diagnosed black lung disease, several of them on multiple X-rays.
“Mr. Brock has evidence of an occupational pneumoconiosis which occurred as a direct consequence of his prior coal mining employment,” according to one of his doctors in 2004.
Brock’s most recent X-ray, in July by Dr. Smiddy, showed the disease continuing its deadly progression.
It’s difficult to predict Brock’s future, but Smiddy said miners exhibiting his symptoms eventually require full time oxygen and often wind up in wheelchairs.
Yet, time and time again, Westmoreland prevailed after labor board claims examiners agreed with assessments by company doctors that Brock did not have black lung.
Such decisions sometimes seem influenced by the resumes of the doctors the companies can afford.
“It puts the miners at a disadvantage fighting against a company that has substantially more resources,” said Jeremy O’Quinn, Brock’s attorney.
Wrongful Denial and Charges of Fraud
Among the first doctors Westmoreland hired to review and diagnose Brock’s condition was a prominent, Harvard-trained radiologist at the Johns Hopkins University School of Medicine black lung unit.
Paul Wheeler and two of his colleagues, all board certified in the specialty of black lung radiology, reviewed Brock’s X-rays and determined he was not suffering the effects of the disease.
The diagnosis fit a troubling pattern.
Wheeler had not confirmed a single case of severe black lung in more than 1,500 cases he evaluated between 2000 and 2013, according to an investigation by reporter Chris Hamby of the Center for Public Integrity. Hamby’s series, “Breathless and Burdened,” won a Pulitzer Prize in 2014.
The disclosure led the U.S. Department of Labor to notify about 1,100 coal miners that their claims for black lung benefits may have been wrongly denied because of Wheeler’s findings. It also resulted in Johns Hopkins closing its black lung unit and led to a class action lawsuit against the university and Wheeler.
The 2016 complaint accuses Johns Hopkins and Wheeler of defrauding coal miners out of black lung benefits using faulty diagnoses.
According to the lawsuit, Wheeler intentionally deviated from an international standard for establishing black lung and substituted his own non-conforming standards for reading X-rays. In that way, “Johns Hopkins and Dr. Wheeler were successful in denying lawfully earned federal benefits to injured coal miners,” the compliant alleged.
Johns Hopkins represented the “gold standard” in health care, and, consequently, its credibility carried great weight, said Jonathan Nace, one of the Washington attorneys representing the miners.
Kim Hoppe, director of public relations and corporate communications for Johns Hopkins, said she could not comment because of the litigation, but she noted the institution has not resumed its black lung program, which was suspended in the wake of the disclosures regarding Wheeler and his colleagues.
Wheeler could not be reached for comment.
In response to the lawsuit, Wheeler and Johns Hopkins contended they are immune from responsibility because expert witnesses in adversarial proceedings are protected by a litigation privilege.
“Disappointed claimants cannot sue one of the employer’s expert witnesses in court to recover additional benefits not awarded in the administrative proceedings,” according to the rebuttal.
Brock and his attorneys also found themselves up against one of the largest black lung law firms in the country. The Jackson Kelly partnership of Charleston, West Virginia, has been a go-to law firm for decades for coal companies.
But Jackson Kelly‘s zealous advocacy has drawn charges of fraud and led to the suspension of one its lawyers by the West Virginia Supreme Court.
In 2011, Douglas Smoot lost his law license for a year because he failed to provide evidence to a miner that would have helped the man prove that he had black lung. The West Virginia State Bar Office of Disciplinary Counsel found Smoot “engaged in misconduct by improperly withholding” critical evidence favorable to the miner while representing Westmoreland.
Smoot represented Westmoreland against Brock.
The law firm also has faced allegations in a class action lawsuit that it withheld information for decades that its own doctors had confirmed the most severe form of black lung in miners.
“In developing evidence in the black lung cases, Jackson Kelly attorneys have knowingly submitted evidence that misrepresents the facts, including, in some cases, the opinions of their experts,” according to the 2009 lawsuit filed in circuit court in Raleigh County, West Virginia.
There is no allegation of wrongdoing by Jackson Kelly or Smoot in Brock’s case. The 2009 lawsuit was recently dismissed with details kept confidential. Jackson Kelly and Smoot did not respond to a call for comment.
In March, Brock got the news he’d been hoping for after 10 appeals. The Labor Department determined that his condition had worsened enough that he qualified for black lung benefits.
Brock had filed his latest appeal with an X-ray and doctor’s opinion that he was suffering from complicated black lung disease, the same diagnosis he had been receiving for years.
Strangely, Westmoreland’s new law firm, Bowles Rice, which had taken over the case in 2013, didn’t file a response. After a deadline for submitting evidence passed, the reason for the silence became clear. The firm disclosed to Brock and O’Quinn the results of an X-ray exam its own doctor had performed: Brock had black lung.
“There it was,” Brock said. “The company’s doctor was saying it’s black lung.”
Even without that evidence, which would have clinched the case, Labor Department Examiner Debbie Weyandt ruled in Brock’s favor. But three months later, she changed her mind. Brock’s latest X-ray didn’t have a date stamped on it.
O’Quinn said he tried to submit Westmoreland’s black lung diagnosis after the claims examiner rejected Brock’s X-ray, but she refused to consider it.
When InsideClimate News asked the Labor Department to explain what prompted Weyandt to reopen the case and reverse herself, a reporter was told that privacy laws prevent discussion of individual cases. Brock waived his right to privacy and authorized the government to release his records and discuss his case with ICN.
Smalley, the district director, then issued a new order. “I find the X-ray evidence supports the presence of complicated pneumoconiosis,” she wrote, deciding it was “irrebuttable” that Brock was entitled to benefits.
Smalley told Brock she acted on her own initiative and wouldn’t discuss his case with ICN.
Brock said he hopes this is the end of his long fight with Westmoreland, which now has another opportunity to appeal.
“You never know what this company is going to do,” he said. “They have fought me so hard, nothing would surprise me.”
A Miner Led to a New Calling
Westmoreland closed its Virginia operations in 1995 and Brock was laid off. He used the severance and free time to return to school at age 55. He earned his General Education Diploma and certification in heating and air-conditioning repair from Mountain Empire Community College. When black lung prevented the strenuous work of a repairman, he went on to the University of Virginia, where he earned a bachelor’s degree in political science and credentialing as a paralegal.
For the next eight years, he worked for attorney Joe Wolfe, helping miners navigate the complex and intimidating maze of regulations surrounding black lung claims.
“It gave me the chance to help miners who were lost and confused by the system,” he said.
He no longer works full time for the law firm, though he occasionally assists miners with claims from a home office where a poster of John L. Lewis—the firebrand former president of the United Mine Workers of America—hangs on one wall.
Although Brock lives comfortably on Social Security, his United Mine Workers pension and income from rental property, there are many miners who barely scrape by and would have a better quality of life with black lung benefits.
Along with a handful of other former miners, Brock has formed the Black Lung Association of Southwest Virginia, a small grassroots organization he hopes will grow to become a thundering voice heard in state capitols and Washington.
At a recent meeting in Cleveland, Virginia, to recruit members, Brock and Dean Vance, the organization’s secretary, listened to the stories of dispirited miners who’d surrendered to the overwhelming odds they’d faced in their cases.
“We’re never going to win,” said Burl Rhea, who’d spent 29 years as a miner.
“Don’t give up. You have to fight,” Vance told the group. “When you say, ‘I quit. I ain’t gonna fight anymore,’ it just makes the coal companies happy.”
Brock said he wants this story to be about more than his experience. He wants it to be about every miner who has ever faced the overwhelming odds of fighting for black lung benefits.
“I am just one example of how the big coal companies use their money and influence to stand in the way of the benefits due miners who give their lives for coal company profit,” he said.
