Black Lung Disability Trust Fund Story Archives - Page 2 of 2

Still Fighting: These Widows’ Stories Show Larger Effects of Black Lung Epidemic

Nancy and Rich Potter had the kind of marriage that made other couples jealous. He’d take her on spontaneous trips. She’d wear her Daisy Dukes just for him.

Joyce Birman said her late husband, George, made a terrible first impression. It was his apology for it that made her fall for him, hard.

Vickie Salyers’ husband, Gene, loved hunting and fishing, but he loved being a father and grandfather most of all.

Potter, Birman and Salyers all married eastern Kentucky coal miners. And like countless Appalachian women before them, they each watched as their loved ones became ill.

“He would cough up this real gross stuff,” said Potter. “It even got to the point – we had to raise the head of our bed and put bricks under it so it would raise his head up.”

Appalachia is experiencing what researchers call an epidemic of black lung disease. An investigation by NPR and Frontline found that regulators for decades failed to protect miners, despite knowing that exposure to silica dust was contributing to a surge in the illness. One in 10 coal miners (and one in five coal miners in Appalachia) suffer from some form of black lung.

Vickie Salyers’ and Joyce Birman’s husbands both died in 2013. Nancy Potter lost Rich in 1997.

The women sought federal black lung benefits through the Department of Labor. Their experiences show how a system designed to help provide for coal mining families became a complicated and fraught bureaucracy.

“The black lung benefits process is really adversarial,” said Evan Smith, an attorney with AppalReD Legal Aid who represents miners and widows in black lung litigation. “For people who just kind of file a claim and think they can figure out the system on their own, sadly they’re really at a disadvantage.”

Birman, Potter and Salyers all fought for years to get benefits. The women spoke of their pride in their husbands’ work, and their anger at the coal companies who fought to deny them the benefits they felt their husbands deserved.

Their stories reveal the broader toll of black lung disease on coal mining communities, families, and especially women, whose experiences are often missing from stories about Appalachian mining.

It’s most often women who care for the sick, struggle with the paperwork, and are left with the painful memories.

Vickie Salyers

Vickie and Lowell “Gene” Salyers looked at a lot of trailers before they settled on the one they’d come to call home. “It was the first new thing we ever had,” Salyers remembered.

They moved into the Rush, Kentucky trailer in 2002. “Our first year in this trailer, he bought me a new Crock-pot and a new sweeper,” she said. “I guess I’ll remember that forever. I guess ’cause we had a new house, he thought I needed a new sweeper to go with it.”

Salyers fears that without black lung benefit payments she could lose her trailer.

Salyers remembered Gene as a principled man who wanted the best for their family. In Boyd County, Kentucky, where the opioid epidemic is particularly pronounced, Salyers said Gene refused painkillers even in the worst of his illness to set a good example for their son, Zach.

“You have that one person who you love with your whole heart, and he was mine.”

Gene worked at a coal terminal on the Big Sandy River, loading barges with coal. “What Gene had to do at these terminals often involved crushing coal, it involved operating heavy machinery that would get clogged,” said Smith, Salyers’ attorney in her case against Gene’s employer, KenWest Terminals. “It ended up being very dusty work, handling all this coal, even though he was never going underground.”

Gene started to get sick around 2006. He was treated for repeated bouts of bronchitis before receiving a lung cancer diagnosis on Christmas Eve, 2009.

“He had a lot of serious surgeries,” Salyers said. After complications from a lung surgery, doctors left Gene with an exposed wound that Salyers had to clean and treat daily for the remaining four years of Gene’s life.

“He couldn’t hardly eat anything, he couldn’t breathe. He would just gasp.”

The family lost both their incomes as Salyers devoted her life to treating the open gash in Gene’s side. If Zach could sit with Gene for a few hours, Salyers would try to clean someone’s house or mow someone’s lawn to bring in a few dollars.

Congress in 1973 passed the Black Lung Benefits Act, which provides monthly payments and health benefits to miners who are totally disabled due to black lung, or coal worker’s pneumoconiosis (CWP), caused by coal employment. The law also guarantees benefits to the dependents of eligible miners who have passed away.

According to the Department of Labor, there were more than 6,000 federal black lung benefits claims filed in 2018 across the country. Of those, 740 were filed by dependents, most commonly widows.

Gene didn’t file his black lung claim until he was already quite sick. “Ultimately,” Smith said, “he didn’t get to see the outcome of his claim because he was so sick when it started.”

Gene died in 2013, in a hospital bed in the corner of the trailer he had been so proud of.

Black lung benefit litigation seemed far too much to think about in the days and weeks after Gene’s death. “They ask you all these questions, and hello, I’m country. I don’t know all this stuff, okay?” But her son reminded her that filing the paperwork was free, and she could use the benefits money.

Salyers’ first claim was denied at the district director level, which is where all federal black lung claims are first filed. The claim was denied, Smith said, because Gene had been too sick to get tested for CWP, “and the judge didn’t really know what to do with that.”

Salyers didn’t take no for an answer. She brought her claim before an administrative law judge, who found in her favor.

KenWest Terminals appealed, arguing that Gene’s lung disease could be attributed to his smoking, not his years breathing coal dust.

Salyers’ case made its way from the initial hearing to the office of the administrative law judge, the benefits review board and finally to the 6th U.S. Circuit Court of Appeals.

As Salyers remembered it, each level brought new anxieties. “They [KenWest Terminals] have so many days to appeal it, and here’s what they do: They wait till that last day. You know, you get excited a little bit, and then they wait till that last day and they appeal it. And that starts the process over again. And that went on for two years, I betcha, or longer.”

With Smith’s help, Salyers has begun receiving $660 per month, a sum that fails to cover her basic needs. Each month she faces a choice between paying her trailer payment or her utility bills.

In October the court awarded Salyers $48,000, but she has not received that payment.

Mark J. Grigoraci, an attorney who represented KenWest Terminals, said he felt the judges in the case had not sufficiently weighed Gene’s heavy smoking and other lung conditions. “Mr. Salyers’ own doctors said he was disabled due to COPD,” Grigoraci said.

But black lung legislation includes a legal definition of CWP for a person who worked for more than 15 years in the coal industry. If a worker is disabled due to “any chronic lung disease … arising out of coal employment,” that person is presumed to meet the legal standard for CWP.

“There can be a tension between what the doctors think the medical consensus is and how the law has defined the conditions that are compensable,” said Smith.

Days before Christmas, 2018, Salyers learned she was facing eviction from the trailer she and Gene called home. Her brother made an emergency payment to keep her in her home through the holidays, but it is unclear how long Salyers has until the trailer is repossessed.

Grigoraci said he didn’t know why Salyers had not received the lump sum in addition to her monthly payment. The Department of Labor did not return a request for comment.

“I’m about to lose the only thing that me and my husband had together,” Salyers said. “If they had to sit here and see him die, they would not put people through that. They would not. They would just give them the benefits and say it was deserved.”

Joyce Birman

George Birman loved gardening. He loved surprising his children with little gifts. And he loved working in the mines. He felt like a father figure to younger miners, Joyce Birman said. She remembered that every day he would leave some of his lunch for his kids to find when he got home.

Birman remembered the lives of the women in her community of Lynch, Kentucky, shaped by the mining industry for as long as she can remember. “When an ambulance would go by near the mines, all the women would go out and line the street to see if it was their husband or not.”

Miners joke, bleakly, that if the big rocks don’t get you, the small rocks will.

When George began to lose stamina and struggle for breath, Birman took him to apply for black lung benefits. They were told that at 70 percent, George’s blood oxygen level was too good to qualify. The cutoff is 69 percent.

Joyce Birman, whose husband George died in 2013.

“He slept in the recliner,” Birman remembered, because his breathing prevented him from being comfortable lying down. “When I’d hear him wheezing, it would really upset me, because I thought, ‘Here this man has worked so hard all his life, and they do not want to give him benefits for what he done.’

“He always told me, he said, if I go first, you make sure and have my lungs biopsied. And I did. … And I got his black lung [benefits]. I just got my money recently. It took five years, because I started right after he died, but I got it.”

Birman used the money to put a new roof on her house, which she says was badly needed.

Smith, who also represented Birman, said many women use black lung benefits money for home improvement projects. Since the miner was typically the primary breadwinner, spending money on the home is another reminder of the loved one’s providing for the family even in death.

Deeply religious, Birman thinks of George’s sacrificing his health – and, ultimately, his life – in the mine the same way Jesus sacrificed his life on the cross.

Nancy Potter

Rich Potter never let Nancy forget how he loved her. “When I’d go by, he’d wink at me all the time,” she said. “If I put a dress on, he’d tell me, ‘You’re so pretty!’”

Nancy and Rich spent many happy years in Elkhorn City, Kentucky, raising children from previous relationships and from their own. Rich worked as an underground miner. Nancy stayed home with the children and sometimes worked in a nursing home. They loved to go hiking with Nancy’s sister and her husband.

After 20 years working in underground mining, Rich started a small business trucking coal.

Nancy noticed Rich getting sick in the later years of their marriage. “You know, at first, I thought, why isn’t he participating, getting out, playing basketball or doing whatever? But he said he just didn’t – he got tired real easy.”

Nancy Potter has fought for benefits for more than 20 years.

The pair tried seeking black lung benefits, but were told Rich didn’t qualify. He died of a heart attack in January, 1997.

“It took 45 minutes to get the ambulance here from Elkhorn, which is five miles up the road. So we got him on the floor, and my 18-year-old daughter started doing CPR on him. She had real long hair, and I could see the hair just flying through the air, with her working on him. And we’re all crying. And he just looked at me with those big, brown eyes, and he died that fast.”

Potter’s grief disoriented her. She recalled sitting in her car at an intersection near her house, unable to remember a route she’d been driving for years. Her son found her there, crying. But Potter was caring for her ailing mother, and she was in the process of adopting her daughter’s one-year-old child. Taking time to grieve wasn’t an option.

Potter took on some hours in a nursing home, but without Rich’s income, money was tight. She decided to try again to get black lung benefits. Her initial claim was denied. The insurance company fighting against her successfully blamed Rich’s black lung disease on his smoking, not his 21 years of coal employment. Besides, Rich had died of a heart attack, not lung disease.

Potter appealed the decision in 2000. A judge told her the case was closed. A new claim in 2000 was denied in 2002 because, according to Potter, no new medical information was available.

“How could there be new information?” Potter asked. “He’s dead!”

In 2009, the black lung Benefits Review Board found that Potter’s due process rights had been violated 12 years earlier when her case was heard at an informal conference instead of a hearing. Her original 1997 claim was still viable if she wanted to pursue it.

Potter pursued it, and lost.

She was furious. “I just always thought, I’m going to get it any time. Because I know he had black lung. And they know he had black lung. But he died with a heart attack, and they said it had nothing to do with black lung. And I said, how can that be? Because it puts an undue burden on you, on his heart.”

Potter requested another chance. She hired an attorney, Joseph Wolfe, who found that Rich’s autopsy slides had been missing for years. She learned in 2013 that a doctor who had performed Rich’s autopsy has been implicated in a malpractice scandal, and his autopsy was no longer being considered, although he had been in good standing at the time the work was conducted.

Lynn Sutter is a case writer who works with Joseph Wolfe and supported Nancy in her case. “Perhaps in the annals of black lung litigation there has never been a decision that matches this one for cruelty,” Sutter wrote in a petition to the Department of Labor. “What has happened since the filing of the first widow’s claim in 1997 has been exceptional, unusual, singular and astonishing.”

Though Potter was widowed at 45, she says she’ll never love again. “The most I’ll touch a man is hugging the preacher on Sundays,” she said. For her, keeping Rich’s black lung case alive is like holding on to a tiny piece of him. “It’s due him, and I’m going to stay with it and fight it until the day I die.”

Still, They Persist: Black Lung Advocates Demonstrate At McConnell’s Ky. Office

With just days left before a Congressional deadline, advocates for black lung treatment are still pushing Kentucky Sen. Mitch McConnell to secure funding for miners’ benefits.

About two dozen people demonstrated Wednesday near McConnell’s regional office in London, Kentucky, carrying placards reading “Black Lung Kills” and singing along with a banjo tune modified for the occasion.

“Oh, Mitch McConnell, when will you answer? Somebody’s knocking at your door.”

The demonstrators said they were denied a planned meeting with McConnell’s staffers. Instead they delivered letters from affected residents who want the Senate’s powerful majority leader to extend the tax on coal that supports the federal Black Lung Trust Fund.

If Congress does not act, the tax will decrease by about half, adding billions of dollars of debt to the fund.

“He has the power to help these people,” Harlan County, Kentucky, resident Teri Blanton said of McConnell. Blanton spoke of her family’s personal experience with the toll of the disease. “I watched my father smother to death from black lung.”

Disabled miner Jimmy Moore is the president of the Southeast Kentucky Black Lung Association. He has black lung, as does his son. He said he’s concerned that the trust fund’s mounting debt will mean that the fund will no longer be able to provide benefits for sick miners.

“It’s a shame that people have to gang up like this to get attention,” Moore said of the demonstration. “But they don’t listen to taxpayers. They listen to coal operators with the money, and we don’t have the money.”

A statement from the National Coalition of Black Lung and Respiratory Disease Clinics said that allowing the tax to decrease would be “a travesty to the coal mining community.”

“The cut sends a message to miners and their families,” the statement continued, “coal operator profits are more important than miners’ health and well-being.”

The National Mining Association argued in recent statements that the current rate of the coal tax should be allowed to expire, calling it an unfair burden on a struggling industry.

Hearings On Horizon

The expiration of the coal tax rate comes just as an NPR investigation shows the extent of the epidemic surge in cases of advanced black lung afflicting central Appalachian miners. NPR reports that more than 2,000 miners are sick with the most serious form of the disease. The investigation also documents the inaction by industry and government regulators, despite decades of warnings that tighter controls on coal and rock dust exposure were needed.

Shortly after the story’s publication, Rep. Bobby Scott, the Virginia Democrat who will soon chair the House Committee on Education and the Workforce issued a statement in response.

“I will be calling hearings in the 116th Congress to forge legislative solutions so that we can prevent the physical, emotional, and financial toll of this completely preventable disease,” Scott said.

Black Lung, Red Ink: Residents Press McConnell As Deadline Looms For Black Lung Fund

On a cool but clear November day about a dozen residents from eastern Kentucky’s coal mining region crowded into the lobby of an office building in the small town of London, Kentucky. That’s where Kentucky’s powerful senior senator, Mitch McConnell, has his local field office.

McConnell’s staff let the local advocates for black lung treatment into the office a few at a time to make their case for funding the federal Black Lung Disability Trust Fund.

There was a lot of laughter and plenty of selfies, but there was tension, too. Many of these residents know miners and families affected by the deadly disease who depend on benefits from the fund, and they know the clock is ticking on a tax that has supported the fund for more than 35 years.

Some people quietly rehearsed what they hoped to say; others brought written statements to read to the senator’s staff.

“I have lived in Appalachia almost 40 years,” Virginia Meagher read aloud. Her first job out of law school was helping disabled miners get approved for black lung benefits. “As our society makes the transition to clean energy we should not forget how our coal miners provided the foundation.”

Another resident, Morgan Brown, said she was visiting McConnell’s office on behalf of her father, a retired coal miner suffering from black lung. Brown said her father worked for different coal companies across the state. Now he struggles with the disease and fights to get benefits from the industry.

“You thought these were your employers, they cared about you,” she said. “Just to see them fight so hard against him is just, like I said it’s infuriating. You just really feel anger.”

Brown’s father is seeking benefits from a company he worked for. But more than 25,000 miners and their dependents rely on the federal trust fund for benefits because a responsible employer cannot be identified.

An excise tax on each ton of coal mined supports the fund, but early in the fund’s operation it slid deep into debt. Congress roughly doubled the coal tax in 1981, and renewed that rate ten years ago.

That rate expires at the end of the year, which would send the tax back to its 1980 level. That would save money for the mining industry but would likely sending the fund’s debt spiraling billions of dollars higher unless Congress acts to extend the existing tax rate.

Disabled retired miner Carl Shoupe prepares to deliver a message to Sen. McConnell.

Retired miner Carl Shoupe said if anyone can get Congress to act, it’s his state’s senior senator.

“Senator McConnell, he’s the most powerful senator in, in the world, as far as that goes. And if he gets on this, he can push it through. I believe that,” Shoupe said. “And I hate to put that on him, but it’s the truth, you know?”

The fate of the trust fund is unfolding amid an epidemic surge in cases of black lung disease among Appalachian miners and a sharp downturn in the region’s mining industry. That leaves McConnell in an uncomfortable position that pits the interests of powerful home-state mining companies against those sickened by work in that industry.

McConnell’s Message

As Majority Leader, Sen. McConnell could find a way to extend the tax. During an October event in eastern Kentucky he appeared to indicate he would do that.

“That’ll be taken care of before we get into an expiration situation,” McConnell said in response to a ReSource reporter’s question about the status of the trust fund and the coal tax. “It just won’t be allowed to be unfunded,” McConnell reiterated.

Senate Majority Leader Mitch McConnell, of Kentucky.

But with less than a week remaining in the Congressional session, black lung advocates are still waiting for McConnell to follow through on that, and McConnell’s staff appears to be softening the senator’s earlier statement.

McConnell’s office did not answer detailed questions about the fate of the tax or commit to extending it at its current rate. In a written statement to the ReSource, McConnell said, “It is a top priority of mine to maintain and protect benefits for those suffering from black lung disease.”

As the ReSource reported in June, a report from the Government Accountability Office estimates that a reduced coal tax would likely add billions to the already sizable debt for the trust fund. In one scenario, the GAO estimates a $15 billion debt for the fund by 2050.

That would not immediately put miners’ benefits in jeopardy. In the past the federal government has forgiven the fund’s debt. But advocates say a large debt raises the possibility of reduced benefits down the road or greater barriers for future applicants to win benefits. And they raise questions about the fairness of having taxpayers, rather than the industry, paying off the fund’s debt.

The United Mine Workers of America, the union representing miners, argues that allowing the coal tax rate to expire would shift the burden for black lung benefits from the industry to the public.

“At a time when black lung is on the rise, especially among younger miners, Congress should not be even considering allowing the coal industry contribution to be cut,” UMWA President Cecil Roberts said in a statement. “Miners are going to need these benefits for decades to come. This is a problem that has been created by the coal industry, there is a system to help the victims of this disease already in place that the coal industry pays for, and I see no reason why we would put the taxpayers on the hook instead.”

Industry Concerns

The coal mining industry has been arguing behind the scenes in Washington and in regional opinion pages that the coal tax at its current rate is “an unfair burden” and should be allowed to expire.

Kentucky Coal Association President Tyler White said that would not mean the tax is going away, rather it would go back to the level Congress originally intended.

“Extending current higher tax rates beyond their scheduled expiration, we kind of look at that as a tax increase,” White said. “At a time when we’re still experiencing a significant economic stress.”

Mackie Branham views a lung X-ray with Dr. James Brandon Crum, who was among the first physicians to note an uptick in black lung diagnoses.

White said that would hurt the coal industry’s ability to remain viable which, in turn, could put the trust fund in jeopardy if there is no coal production to be taxed.

Congress has reason to listen when the coal industry speaks. Coal mining companies and their political action committees doled out more than $20 million in political spending in the last two election cycles, according to an analysis of campaign finance records by the nonprofit Center for Responsive Politics. About 95 percent of campaign contributions went to Republicans and some of the top contributing companies have a major presence in the Ohio Valley, including Alliance Resource Partners and Murray Energy.

The mining industry’s aggressive lobbying appears to be paying off. For example, a draft version of a House tax bill had included a modest, one-year extension of the current excise tax rate on coal for the trust fund.

Then in late November the National Mining Association sent members of Congress a letter urging them to remove that section from the bill. The letter from NMA President Hal Quinn also warned that if the provision was not removed NMA “will include this floor vote in its Congressional Scorecard” as a negative mark against lawmakers.

When House Republicans released a new version of the bill in December, the coal tax rate extension was gone.

Not Giving Up

“Well it just shows you how responsive Congress can be to lobbyists from an industry that’s on its decline,” said Wes Addington, Deputy Director of the nonprofit Appalachian Citizens’ Law Center.

Addington is the son of a miner and the law center operates in Whitesburg, deep in eastern Kentucky’s coal country, where staffers work on black lung benefits and other mining community issues.

He noted that the trust fund has been especially important for Appalachian mining communities because of the region’s long history of mining and frequent problems identifying a company to take responsibility for a sick miners’ benefits.

Department of Labor figures support that. From 2009 to 2018, Kentucky, Ohio and West Virginia have been responsible for 63 percent of all black lung benefit claims the department received. In that time residents of the three states have relied on over $1.3 billion to from the fund to help pay for medical and other life expenses brought about by black lung disease.

“Why is McConnell not following through with his sort of promise to miners and their families in Appalachia?” Addington asked. “This fund that’s so crucial to their health and well-being,”

With just days left before Congress is scheduled to adjourn, the Kentucky black lung advocates weren’t ready to give up. They were planning one more visit to McConnell’s regional office.

ReSource staff Alexandra Kanik and Jeff Young contributed reporting.

Black Lung Benefits Fund in Deepening Debt as Epidemic Surges

A new study from the Government Accountability Office finds that the federal fund supporting coal miners with black lung disease could be in financial…

A new study from the Government Accountability Office finds that the federal fund supporting coal miners with black lung disease could be in financial trouble without Congressional action. As NPR has reported, the GAO found that the fund’s debt could rise dramatically at the same time that black lung disease is surging.

Most federal benefits for coal miners disabled by back lung are paid from the Department of Labor’s Black Lung Disability Trust Fund, which covers the cost for companies that have gone bankrupt.

The trust fund is mainly supported by a tax on coal, but according to the GAO, those taxes have not covered costs, leaving the trust fund over $4 billion in debt. The GAO says that debt could soon climb to more than three times that amount if Congress doesn’t take action.

Other recent federal studies show that black lung disease is surging both in frequency and severity, especially in central Appalachia.

Bethel Brock, a retired paralegal in Wise, Virginia, is a disabled former coal miner who fought for years to win federal black lung benefits. As Brock explained, more cases of severe black lung could raise costs significantly.

“The cost is on giving a miner a health card for his lungs and heart,” he said. “Cases where a miner might have to have a lung transplant can run into the millions of dollars.”

Decades of Debt

In 1981, Congress approved a temporary tax increase on coal in hopes of getting the trust fund out of debt. The increase was extended in 2008, and is set to expire at the end of this year. That would cut the fund’s income by more than half and the GAO predicts the fund’s debt would more than triple by 2050, reaching over $15 billion. Even if the tax cut is extended, the fund’s debt is expected to continue to grow slightly.

Republican Senate Majority leader Mitch McConnell of Kentucky said he’s aware of the issue, but would not say whether he’d support extending the tax.

“It doesn’t expire until the end of the year,” McConnell said, “and so we’ve got plenty of time to take a look at solving that problem.”

The issue puts McConnell in an uncomfortable position. Many of the affected miners are his constituents but he also enjoys support from the mining industry, which opposes extending the tax.

Who Pays?

The National Mining Association told NPR it hopes that some or all of the debt will be forgiven. That’s what happened in 2008, when taxpayer funds absorbed $6.5 billion of the fund’s debt.

United Mine Workers of America president Cecil Roberts argues against forgiving the debt. In a press release, Roberts said reducing the amount companies pay is “not just wrong, it is rewarding bad corporate behavior.”

Evan Smith, a black lung attorney and blogger at the Appalachian Citizens Law Center, said industry opposition to extending the tax raises some big questions.

“I want coal to make sense. I want there to be coal mines, I want there to be coal miners,” he said. “But if you say that you cannot protect your workers at the current price of coal, then does the entire enterprise make sense?”

Because black lung can be prevented by limiting dust exposure, experts for many years thought the disease would soon be a thing of the past. But central Appalachia is now facing the largest epidemic of severe black lung ever documented.