Tomblin Hopes Feds Reconsider Black Lung Benefits Funding Cuts

 
Federal funds for black lung benefits in West Virginia were cut about 44 percent. The United States 
Department of Health and Human Services Black Lung Clinic program now limits awards to $900,000 per grantee.  

Last year the funds helped nearly 8,500 West Virginians suffering from Black Lung disease find critical services at eight clinics across the state, totaling more than 52,000 documented visits.
 
 
 
The West Virginia Bureau for Public Health has been a recipient of the Black Lung Clinic Grant program since 1979 and has provided oversight and technical assistance for Black Lung clinics statewide.
 
 

Last year, 14 states received funding.  Thirteen states received less than $900,000 and West Virginia was awarded $1.4 million.  
 
 
 
According to a release, Gov. Earl Ray Tomblin sent a letter to U.S. DHHS Secretary Kathleen Sebelius regarding this change.  In the letter, Tomblin asks the Secretary  reconsider or “allow for supplemental request to maintain the standards of care and service” in the state’s black lung clinics.  
 
 
 
Congressman Nick Rahall also responded to the announcement. In a statement Rahall says he’s working with Rockefeller and Manchin to address the problem. 
 

PROs help keep schools safe, more on the recent Center for Public Integrity black lung investigation

  Two stories that examine the critical role of Prevention Resource Officers in schools and what they do to keep students safe and a conversation with The Center for Public Integrity’s Chris Hamby, who investigated the handling of cases involving black lung disease.

Congressmen want W.Va. law firm investigated

Two congressional Democrats want the U.S. Labor Department to investigate how West Virginia law firm Jackson Kelly has handled black lung benefits cases for its coal industry clients.
 
     Reps. George Miller of California and Joe Courtney of Connecticut cite an investigation of the federal program by the Center for Public Integrity and ABC.
 
     Miller is ranking Democrat on the House committee that oversees the program.
 
     The reports say Jackson Kelly withheld medical records that could have helped miners prove they have the disease.
 
     Jackson Kelly has represented coal companies since the mid-1800s.
 
     The company declined comment to the Charleston Daily Mail but says in court documents it has no duty to turn over certain information.
 
     Jackson Kelly says its obligation is to prepare the best case for its clients.

Do attorneys have to present damaging evidence in court?

A widow is battling for black lung benefits of her dead husband.  Mary Fox filed an appeal on behalf of her late husband Gary Fox last year. Testimony before a federal appeals court began today in Virginia.

The hearing comes the same day stories from a yearlong investigation by the Center for Public Integrity revealed lawyers with the Jackson Kelly law firm submitted only favorable evidence in court.

Update: Thursday,  November 14, 2013 at 12:22 p.m.

A judge sided with Fox in 2009 after evidence surfaced that attorney’s with Elk Run Coal Company, then owned by Massey Energy, withheld evidence that possibly proves Fox did indeed have black lung. According to the brief filed in federal court, the same decision reopened prior claims. 

10294SCAOralArguments.mp3
Listen to oral arguments in the case Mary Fox v. Elk Run Coal Company, Inc., in the US Court of Appeals for the Fourth District.

On Tuesday, Fox’s lawyers, John Cline and Al Karlin, were expected to introduce ethical considerations. The question is: should lawyers be allowed to obtain medical reports from large numbers of experts, submit only the favorable ones and withhold the rest? A decision isn’t expected for a couple of months.

Jackson and Kelly attorneys were expected to argue they have no legal obligation to provide Fox the reports when he didn’t ask for them. According to CPI report, at the time, Fox could not find an attorney willing to take his case so he represented himself. 

Jackson and Kelly did not return a request for comment.

The CPI found that in Fox’s case, the firm withheld two pathology reports by its own chosen experts who found his lung tissue consistent with the most severe form of black lung. Jackson Kelly did not disclose the reports, instead building its case around the report of a local hospital’s pathologist that hadn’t identified black lung.

The CPI is reporting that Jackson Kelly lawyers have for decades used “a cutthroat approach to fighting miners’ claims.”

The center says it found this evidence after sifting through hundreds of thousands of pages dating back 40 years.

The West Virginia Office of Disciplinary Counsel opened investigations into three Jackson Kelly lawyers who were involved in Fox’s case. To date, they have not been charged with any wrongdoing.

Oral arguments begin Tuesday morning in Richmond Virginia, but no decision is expected for months.

Alpha Natural Resources spokesperson Steven Higginbottom sent this statement in an email:

"Alpha Natural Resources and its affiliates adhere to the federal Black Lung Benefits Act guidelines when considering claims, as well as to the Federal Rules of Civil Procedure.  In the Fox case, the FBL Benefits Review Board exonerated Jackson Kelly of any fraudulent conduct.  That decision is presently on appeal to the United States Court of Appeals for the Fourth Circuit and Alpha will not comment further on the matter while it is in litigation."  

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