Black Lung Benefits in South Carolina

Coal mining is a $60 million industry in South Carolina, providing some 2,420 jobs in the state, according to the National Mining Association.
The number of miners in the state used to be even higher, before the emergence of numerous health issues became apparent. One of those was “black lung disease,” an irreversible condition also known as pneumoconiosis, a result of a build-up of coal dust in the lungs that results in inflammation, fibrosis and, in some cases, death of lung tissue.

Some 10,000 Americans have died from the condition over the last decade, and even though the disease is preventable, many miners are continuing to develop it. Since the early 1970s, benefits have been available to ailing coal miners, former coal miners and their dependents as part of the Black Lung Benefits Act. These benefits are paid out by private coal companies, though the claims are processed through the federal department of labor.

Filing a claim for black lung disease in South Carolina is done in through the Pikeville District Office in Kentucky, which covers claims originating from Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Mississippi, Alabama and Florida. Although the director of that division will be the one to make an initial finding, there is almost always an adversarial process triggered by the request of the losing party to initiate an evidentiary hearing.

In an effort to encourage plaintiffs to secure legal representation throughout this process, federal law requires defendants in these cases to cover reasonable plaintiff attorney fees if the defendant loses the claim.

The case of Fox v. Elk Run Coal Co., Inc. is a good example of how tough these claims can be to win without an attorney.

The plaintiff, Mr. Fox, was employed as a coal miner for 30 years before chest x-rays revealed a mass in his right lung. Surgical samples did not definitively reveal a pneumoconiosis diagnosis, but Mr. Fox applied for compensation under the Black Lung Benefit Act. His claim was approved by the director in 2000. But of course, his employer requested an administrative hearing.

In preparation for that proceeding, the company provided Mr. Fox’s medical records to several pulmonologists, who each concluded it wasn’t likely Mr. Fox had black lung. However, in submitting the evidence to these doctors, the company excluded records from two of the doctors who had previously examined Fox. Those reports diagnosed Mr. Fox with complicated pneumoconiosis.

At the hearing, the company was represented by a lawyer, while the plaintiff was not. The court deemed him competent to continue with the hearing. But competent doesn’t mean effective. While the company presented evidence and testimony from numerous doctors supporting its conclusion, Mr. Fox offered only his own testimony.

The company did not submit to Mr. Fox or the court records of the two doctors whose opinions were that Fox was totally disabled due to black lung.

With little evidence to go on, the administrative law judge found in favor of the coal mining company. Mr. Fox didn’t appeal.

But then in 2006, he retained counsel and filed a new claim.

Once again, the director found him eligible for benefits and, once again, the company requested another evidentiary hearing.

But this time, Mr. Fox’s attorney conducted vigorous discovery, demanded the company hand over all of its records – including the pathology slides and doctor’s reports that it had withheld before. Soon after, the company conceded its liability for Mr. Fox’s 2006 claim.

Still, that meant he hadn’t received benefits for years, even though he likely had been eligible. So Mr. Fox (with his wife later assuming the role of plaintiff after he died) sued the company, alleging the firm had committed fraud upon the court by failing to disclose those reports.

Here, the court found that the company’s conduct, although egregious, was not sufficiently egregious to meet the high bar for a claim of fraud because it did not undermine the integrity of the adjudicative process.

The reality is, had the plaintiff hired an attorney the first time around, the company’s actions would likely have been caught much sooner and he would have more than likely received an additional decade’s worth of disability benefits.

Contact our Anderson personal injury lawyers at Lee Law Offices today by calling 800-887-1965.

Additional Resources:
Hoschar v. Appalachian Power Co., Jan. 7, 2014, U.S. Court of Appeals for the Fourth Circuit

Fox v. Elk Run Coal Co., Inc., Jan. 3, 2014, U.S. Court of Appeals for the Fourth Circuit

More Blog Entries:
South Carolina Injury Lawyers Warn of Thousands of Drug Recalls Annually, Feb. 7, 2013, Anderson Personal Injury Lawyer Blog

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