Cross & Smith LLC


Black Lung Claims and the Alabama Mining Industry

Jan 13, 2014 - Personal Injury, Tuscaloosa by

Two years ago, the Walter Energy firm selected Tuscaloosa County as the site of a six-year, $1.2 billion energy project that would result in the creation of a new coal mine from scratch. The Blue Creek Energy project is currently underway, and is expected to begin production of 4 million tons of coal for global steel mill export by 2018. Roughly 530 jobs are expected to spring from this venture. miner1

This has all been good news for the region. Our Tuscaloosa personal injury attorneys are cautiously optimistic that the new firm will take all precautions necessary. Still, far too many mining veterans are suffering health consequences, including pneumoconiosis, or “Black Lung,” a diagnosis that has plagued the coal industry for decades.

Unfortunately, the coal industry has historically had a poor reputation with regard to protecting workers from this fatal, yet preventable, condition.

The recent case of Fox v. Elk Run Coal Co., Inc., reviewed by the U.S. Court of Appeals for the Fourth Circuit, is a good example.

The plaintiff in this case was the widow of a coal miner, and her claim was that the defendant, her deceased husband’s former employer, had cheated him out of a decades’ worth of benefits under the federal Black Lung Benefits Act by concealing critical information when her husband filed his first claim for benefits. She alleged this action constituted fraud upon the court.

Title IV of the Federal Mine Safety and Health Act of 1977 hold that coal companies whose workers became totally disabled as a result of black lung disease incurred in the course of their work should pay monthly benefits to eligible miners and their survivors. The benefits are based on the workers’ monthly salaries. The benefits are administered through the Office of Workers’ Compensation Programs, which must first approve the benefits. In almost all cases that are initially found in favor of the worker, coal companies will appeal for an evidentiary hearing. In order to encourage claimants to hire a lawyer during these proceedings, Congress wrote a provision stipulating that successful claimants were entitled to coverage of attorney fees by the defendants. This is true even if the case further proceeds to any subsequent appeals in the respective circuit court.

The critical error by the plaintiff in the Fox case was that he did not secure an attorney prior to attending an evidentiary hearing. He had already been awarded benefits by the workers’ compensation office, and perhaps figured he wouldn’t need one because his claim was relatively straightforward.

What he didn’t count on, however, was that the coal company produced the court only those medical opinions supporting its own stance that the worker wasn’t entitled to benefits. It never revealed to the court that two doctors’ opinions it received concluded that the worker was suffering from black lung disease, and therefore entitled to benefits.

However, without an attorney, the plaintiff presented no expert testimony, offering only his own in court. As such, the judge ruled in favor of the defendants.

It wasn’t until about 10 years later, when he filed a new claim for benefits, that the concealment was revealed. This time, the plaintiff hired a lawyer who conducted “vigorous discovery efforts,” according to the court, and found the previous documentation.

At this point, the company conceded that it owed the worker benefits and began paying them at that time.

However, he and his wife determined that wasn’t enough. He should have been awarded benefits years earlier when he first applied and, but for the concealment of the defendant, he probably would have been.

But in its recent review of this claim, the state supreme court determined that while the coal company’s actions were highly unethical, they didn’t rise to the level of fraud.

Plaintiffs in black lung disease cases must assume that defendants will not agree to pay benefits without a fight. To ensure you receive the benefits to which you are entitled, it’s imperative that you contact an attorney.

Additional Resources:

Fox v. Elk Run Coal Co., Inc., Jan. 3, 2014, U.S. Court of Appeals for the Fourth Circuit
Walter Energy’s new mine in Tuscaloosa County to bring 530 high paying jobs and investment in support projects in three other counties, May 1, 2012, By Russell Hubbard, The Birmingham News

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