Retired Virginia coal miner Bethel Brock was elated when he learned he’d finally triumphed after an emotionally draining 14-year struggle for black lung benefits.
But then Brock, 77, got the decision letter and realized that his battle with Westmoreland Coal Company and the U.S. Department of Labor, which had lasted through 10 appeals, isn’t really over.
On Nov. 1 Brock was awarded $976.40 a month and medical coverage at Westmoreland’s expense for heart and lung ailments attributed to his coal job, a benefit that could total hundreds of thousands of dollars should he ever need intensive hospital care.
But with misplaced reasoning, in Brock’s opinion, the Labor Department decided against making the benefits retroactive to 2004, when a department claims examiner first agreed with his doctors that he’d become disabled by the progressive disease that robs the lungs of the capacity to hold air.
Instead, the department fixed the official date of his disability as December 2015 and calculated his back benefits at $27,108, about $100,000 less than he figures he is due. And, in a further blow, it demanded that he return $12,647.45 that had been paid to him after that first 2004 decision in his favor.
Brock says the Labor Department is letting Westmoreland off the hook for a substantial sum, rewarding the company’s persistent pushback against an ailing miner and failing to hold it accountable for engaging a now-discredited doctor whose review of black lung cases unfailingly favored coal companies.
“It seems like you can never win,” Brock said. “It seems like the deck is always stacked against you.”
A 14-Year Fight While His Health Worsened
Brock, whose struggle for breath occasionally forces him to the ground wherever he is, was diagnosed in 1982 with the early stages of black lung.
In 2004, the Labor Department, which administers black lung claims, found that he was disabled by the disease and awarded him benefits. That triggered the fight with Westmoreland and its insurance carrier.
Westmoreland prevailed most recently in June by convincing a claims examiner that Brock was not disabled. But after InsideClimate News began asking questions about his case for an article examining how coal companies use legal tactics to avoid paying black lung benefits, the department abruptly reversed itself and ruled in his favor in September. Westmoreland did not put up a fight, and the $27,108 award became final 60 days later.
The story of Bethel Brock is one example of how the fossil fuel industry fights government efforts to protect the environment and public health, which InsideClimate News is chronicling in a multipart series. Even when Westmoreland lost a round, it used every legal maneuver to delay the outcome.
The coal company’s chief administrative officer and chief legal officer did not respond to a call for comment.
The award also came with a bill from the Labor Department for the $12,647.45.
The department is seeking to recover funds Brock was paid from 2004 to 2005, the time between the initial award of benefits and Westmoreland’s first successful appeal. The payments were made while Westmoreland appealed and ceased when the coal company won the first time.
The department reasoned that since it set 2015 as the starting point of Brock’s disability instead of 2004, Brock owed the agency for the earlier payments, which were made from a fund designed to provide interim compensation during the appeal process.
How Government Justified Billing Him
Even though the Labor Department told Brock he was “without fault” for the payments, he nevertheless would have to repay the money, by check or money order.
“We have studied your case carefully,” said a letter from Mary T. Kuzilla, a senior claims examiner for the department. “We have determined that the circumstances of your case do not permit us to waive the recovery of your overpayment.”
In her letter, Kuzilla said the department determined that repayment would not have an impact on Brock’s everyday living expenses and that ordering the money repaid “would not be against equity or good conscience” since he hadn’t used it for something like paying college tuition for a child.
“They don’t know how this will affect me,” Brock said, adding that he is financially stable now but doesn’t know what the future holds.
Brock has notified the Labor Department that he wants the decision setting 2015 as the date of his disability reviewed by an administrative law judge. He also has asked for a review of the demand for repayment. These appeals could take as long as three years.
He said he will argue the effective date of his award should be 2004, the date the department first deemed him disabled by black lung disease.
“They saw the evidence back then that I was disabled and agreed that I was disabled,” Brock said.
The Labor Department settled on 2015 as the start for Brock’s disability because that’s the date Brock filed the appeal that Westmoreland ultimately didn’t contest.
One Doctor and a Tainted Diagnosis
Brock also is poised to argue that his case was tainted early on by a doctor prejudiced against black lung claims. Among the first doctors Westmoreland hired in 2004 to review and diagnose his condition was Paul Wheeler, a prominent radiologist at the Johns Hopkins University School of Medicine black lung unit.
The conclusion by Wheeler that Brock was not disabled by black lung was touted by Westmoreland to successfully block his claim. Years later, the Labor Department warned its claims examiners to disregard Wheeler’s conclusions. That caution came in the wake of an investigative series of stories by the Center for Public Integrity that disclosed Wheeler had not once diagnosed black lung after reviewing more than 1,500 claims on behalf of coal companies.
“Westmoreland knew that Dr. Wheeler was going to be on their side no matter what the evidence said,” Brock said.
He is eager to argue that Westmoreland would not have prevailed in its first appeal without the tainted diagnosis. “So why should they be allowed to continue to benefit from something that was bad from the beginning.”
Winning isn’t a sure thing, though.
Brock and his attorney Jeremy O’Quinn will have to convince an administrative law judge that the judge who overturned the Labor Department’s award in 2005 made a mistake.
“We are going to have to go line-by-line over that hearing to show that somewhere the judge gave improper weight to something that was injurious to our claim,” O’Quinn said.
The key could be how much the judge relied on Wheeler’s evaluation, though O’Quinn, who has represented Brock since 2015, said he had not yet had the opportunity to digest the details of the 2005 hearing to identify potential weak points to attack.
“We have a lot in front of us,” O’Quinn said.
‘The Fight So Many Deserving Miners Face’
What has happened to Brock is outrageous, but not unusual, said Ron Carson, director of the Black Lung Program at Stone Mountain Health Services in St. Charles, Virginia.
“This is the fight so many deserving miners face,” Carson said. “The deck is stacked against the miners and in favor of the coal companies throughout the whole process. Even when they win, they spend years fighting, and, like Bethel, don’t get what they deserve.”
Carson, who has assisted thousands of miners with black lung claims during his 30-year career at Stone Mountain, said Brock faces an uphill battle to win benefits back to 2005. He will have to overcome the dense bureaucracy of the Labor Department and confront overwhelming resistance from Westmoreland and its insurance carrier.
But Carson is cheering Brock on.
“Pursue it. Go for it. Pave the way for others to follow—do it for you and the future of those still working in the mines and for those disabled and still fighting for benefits,” Carson said.
David Hasemyer
Reporter, San Diego
Inside Climate News reporter David Hasemyer is from the red rock country of Southeastern Utah where he grew up and learned to appreciate the importance responsible stewardship of the environment. He is co-author of the Dilbit Disaster: Inside the Biggest Oil Spill You’ve Never Heard Of, which won the 2013 Pulitzer Prize for National Reporting, and co-authored the 2016 Pulitzer Prize finalist series “Exxon: The Road Not Taken.” Prior to joining ICN, Hasemyer had an award-wining tenure at The San Diego Union-Tribune as an investigative reporter. Hasemyer’s newspaper work has been recognized by the Associated Press, the Society for Professional Journalists, the Society of American Business Editors and Writers. He also has been a finalist for the Gerald Loeb Award and the Robert F. Kennedy Award for Social Justice and Human Rights. PGP key: http://ow.ly/iEHN3089Gqg
