Dec. 4, 2006 – Three years after his death, West Virginia coal miner Harold Terryâ€™s widow is still fighting to get black-lung benefits â€“ federally mandated payments established as a result of labor struggles four decades ago.
Even though a federal judge ruled multiple times that Terry was indeed disabled by black-lung disease, a debilitating illness caused by inhalation of coal dust, Hobet Mining Company is refusing to pay up.
Terryâ€™s case mirrors the situations of thousands of ex-miners and their families nationwide, who are pitted against coal companies in drawn-out legal battles over black-lung benefits.
Until Terryâ€™s death, the government was paying for his health care and a modest monthly stipend out of a fund set up for black-lung cases under appeal. If the company loses the appeal, it will have to pay back the government. If Hobet wins, Terryâ€™s widow Adele will theoretically owe thousands of dollars in reimbursement to the government.
The case will be argued before the US Fourth Circuit Court of Appeals on November 30. Hobet did not respond to interview requests.
Black-lung disease has disabled and killed hundreds of thousands of coal miners over the past century as coal has fueled American industrial growth.
Miner uprisings in the West Virginia coal fields in 1968 led to the creation of a federal black-lung benefits program in 1969 that is supposed to pay the health care and living costs of miners suffering the disease.
While at first the government funded the program, in 1973, financial responsibility was shifted to the coal mining companies. Since then, according to miners' advocates and lawyers, mining companies and their insurers have fought tooth and nail against almost every black-lung claim filed.
"There's an idea among miners that coal companies fight every case â€“ even if it's a very strong case â€“ to have a chilling effect," said Dr. Bob Cohen, head of the black-lung clinic at Chicagoâ€™s county hospital, and medical director of the National Coalition of Black Lung Clinics.
Terry first filed for black-lung benefits in 1980. A Department of Labor judge denied his initial claim in 1989. In 1993, Terry filed a second claim, which was granted by Department of Labor judge in three separate findings.
With each legal victory, however, Hobet appealed to a higher court, which remanded the case back to the initial judge for further consideration.
In 1996, Terry connected with the black-lung legal clinic at Washington and Lee University in Virginia, one of a few programs nationwide that provides pro bono aid to miners. After years of representing himself in court, "he had a trash bag full of documents to give them," Adele Terry told The NewStandard.
Hobetâ€™s argument is that Terryâ€™s illness was not caused solely by black-lung disease and that he was not wholly disabled by the disease.
Terry worked as a front-end-loader operator in strip mines near Charleston, West Virginia, a two-hour drive from his home. Black-lung disease is usually associated with work in underground mines, but studies over the past decade by the Centers for Disease Control and Prevention (CDC) have shown that the disease is also a serious risk for strip miners, who work primarily in the open air of surface mines.
"They say a coal miner who does strip jobs doesnâ€™t get coal dust," Adele said, "but I found a picture of my husband coming home from work where you canâ€™t tell if heâ€™s a black man or a white man, all you can see are his eyes. Thatâ€™s how much coal dust there was."
Terry died on July 2, 2003 at age 75, just short of the coupleâ€™s 52nd wedding anniversary.
To qualify for federal benefits, miners have to be diagnosed with black-lung disease, provide evidence that coal-mine dust contributed significantly to their illness, and prove that they can no longer work in the mines or do comparable labor. Widows and other dependants of miners who die from black lung are also eligible for benefits, but can only obtain them after a separate claim process in which they prove the ex-minerâ€™s death was caused by black-lung disease.
Stories of Struggle
Only about one in eight miners ever wins black-lung benefits, and then often only after many years of fighting. According to the Department of Labor, only 595 of the 4,659 miners and dependants whose claims were decided in 2005 â€“ 13 percent â€“ were awarded benefits. In 1980, before "reforms" to the program that made it even harder to obtain benefits, the figure was 40,067 of 134,603 miners, or almost a third.
"The companies and their insurers use their superior resources to try to overwhelm the claimants with expert evidence," said Tom Johnson, a Chicago attorney who has represented many miners in black-lung cases. "They spend thousands and thousands of dollars on experts trying to out-opinion and discourage coal miners' claims."
At an annual conference of black-lung clinics in Nashville in September, doctors, lawyers and advocates who deal with black-lung cases, and miners themselves, swapped stories about fighting for their benefits.
Calvin and Geneva Dunford came to the conference from their home in Bandy, Virginia where Calvin is president of the Virginia Black Lung Association. He has been fighting for his black-lung benefits since 1979, and finally received them this year after the Fourth Circuit turned down the companyâ€™s appeal.
"Theyâ€™re going to pay up" said Calvin, his voice shaking from the exertion of walking slowly along the hotel corridor.
"It would have been nice if we had gotten it when we were younger," added Geneva with a sigh.
Kathryn South, another conference attendee, is still struggling to get widowâ€™s benefits after her husband Mike, a United Mine Workers of America union activist based in Pittsburgh, died in 2001 from black-lung disease. After he had a lung transplant, the company stopped paying Southâ€™s black-lung benefits, even though he still had one diseased lung and was unable to work.
"Iâ€™m still getting collection notices from the hospital," South said.
Dust in the Mines
While former miners fight companies over black lung in the nationâ€™s courtrooms, unions are taking their fight to the coal mines. Black lung is a preventable disease. It can be largely avoided if companies take measures to ensure miners do not work in high levels of the coal dust that causes the disease.
Coal dust can be contained by spraying water as the coal is cut and by blanketing it with rock dust. Union leaders have been pushing companies to provide personal dust monitors to every miner so they can see instantly if dust is at dangerous levels and take measures to control it.
The National Mining Association (NMA), an industry group, has said it supports the use of personal dust monitors once research has proven they are effective and they are commercially available.
Meanwhile, in 1995 the National Institute for Occupational Safety and Health (NIOSH), a division of the CDC, recommended that the allowable dust level be reduced from two milligrams per cubic meter to one, but the recommendation was not adopted by the US Mine Safety and Health Administration (MSHA).
Critics say that even the two-milligram limit is rarely enforced adequately.
Coal companies are required to send air samples from their mines to MSHA for testing, but the self-sampling process has been riddled with fraud â€“ so much so that industry leaders have joined with miners to call for reform.
During an MSHA public hearing in May 2003, Joe Lamonica, an industry health and safety consultant for the Bituminous Coal Operatorsâ€™ Association, proposed MSHA take control of dust sampling.
Currently, "the mine operator takes the majority of samples submitted to MSHA," Lamonica said. "Cases of sampling fraud have caused a loss of credibility with the program among our nationâ€™s miners. How do we try to restore that credibility? We do it by taking the dust-sampling program out of the hands of the operators and putting it totally in the hands of MSHA."
The standard fine for minor safety violations like high dust levels is only $60 per violation â€“ mere pocket change for a multi-million-dollar coal company.
"My grandfathers both worked in mines and said the operators cared more about the mules than men," said Dennis Odell, health and safety director with United Mine Workers. "Sadly, some of them still have the same attitude. Most operators would rather go on and pay a fine than stop production" to correct a violation.
In the wake of a series of deadly coal-mine accidents this year, MSHA has proposed increased fines for mine safety and health violations. MSHA estimated the average fine under its proposal would double from $213 per violation to $587 per violation.
Coal companies contested the proposal during hearings in September and October, and a final decision has not been announced.
With coal prices high, mining conglomerates are opening small, non-unionized mines through subsidiaries, pulling out the coal as quickly as possible and then moving on to the next seam.
"Since demand for coal is going up, you see all these punch-hole mines popping up, and MSHA doesnâ€™t have the resources to inspect them all," said Odell.
A study released by NIOSH last year showed that rapidly progressing forms of black-lung disease are much more common than expected, especially in younger miners. NIOSH also found the disease is more prevalent in non-unionized mines with fewer than 50 employees. Particularly high rates of the disease were found in "hot spots" in eastern Kentucky, and western Virginia. Black-lung disease was found in 3 percent of miners tested â€“ a much lower number than in the 1960s, but still enough to be labeled a "sentinel health event" by NIOSH.
Coal is a bedrock of the countryâ€™s energy plan for the future; more than 100 new coal-burning power plants are in the permitting or building stages nationwide. Technological advances have made lower-emissions plants possible, alleviating some of the public health and environmental concerns surrounding coal-burning. But regardless of how cleanly coal can be burned, mining remains a dangerous job that takes numerous tolls on workers.
Adele Terry described how Harold would get up at 3:30 a.m. every day to drive two hours each way to the mine, only to end up decades later scrambling to pay medical bills and meager living expenses as the company spent thousands of dollars to prevent him from collecting black-lung benefits.
"Itâ€™s a disgrace what they do to the coal miners," Adele Terry said. "You know the system doesnâ€™t work for the ordinary working man, it only works for the company."