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Miners might soon breathe sigh of relief

Joe Napsha
| Sunday, April 11, 2010

Richard I. Reynolds took a deep breath into a machine to measure the capacity of his lungs -- or at least as much as he could after working 44 years in the former Warwick Mine in Bobtown, Greene County.

"How can you breathe (deeply), if you can only breathe so much," Reynolds, 85, of Fairchance, Fayette County, asked a medical technician at the Lungs At Work clinic in the McMurray section of Peters, Washington County.

Reynolds and his son, Richard W. Reynolds, 57, also of Fairchance, were undergoing a battery of lung and blood tests last week as part of their efforts to qualify for federal benefits provided to coal miners who are 100 percent disabled from pneumoconiosis, commonly known as black lung.

The disease is caused by breathing coal dust that contains carbon or silica for an extended period of time, which clogs and scars lung tissue, and reducing breathing capacity. There is no cure for the progressive disease.

The younger Reynolds retired from the Warwick Mine after working there 24 years.

The father and son retired coal miners, along with thousands of others, will have a better chance of qualifying for medical benefits and monthly payments, experts say, because of provisions in recently enacted health care reform legislation.

Under the new law, it is presumed that a miner's totally disabling lung disease was caused by his job if he had 15 years of service. That will force mining and insurance companies to prove other factors caused lung damage if they challenge benefit payments. Widows and survivors who received black lung benefits no longer have to reapply for benefits if the miner dies for reasons not related to the disease.

The changes are retroactive to cases filed as far back as 2005, which have insurers and coal industry representatives concerned.

"Hopefully, it will make it easier to get (benefits). It was tough to get before," said the junior Reynolds.

The senior Reynolds said he gave up efforts a few years ago to get the benefits because he did not want to go to Virginia for more tests after spending $1,500 in an attempt to qualify.

"You have to be damn near dead ... or on your deathbed" to get those benefits, said Reynolds, who started in the mines in 1946.

Eightly-seven percent of the initial claims filed by miners in 2008 were rejected by the Department of Labor, which oversees the program, according to an October 2009 Government Accountability Office study of the black lung benefits program. The study noted that for some cases, "required conditions (for eligibility) are difficult to prove" and miners face many challenges in pursuing their claims, including finding an attorney and obtaining sound medical evidence.

The new provisions will have a significant impact on the program, and "it will affect lots and lots of cases," said Mark Solomons, a Washington attorney representing Old Republic Insurance Co., a Greensburg-based insurer of large and small coal companies.

"Employers will lose cases they used to win," said Solomons, a former member of the President's Commission on Occupational Disease, who has had 40 years of experience with black lung benefits litigation. "The potential damage to the self-insured mine operators, is really potentially devastating."

"The rules of the game have changed, but I don't view the new law as an outcome-changing event. The merits of the case still will be determined by the evidence in the claims hearings," said James W. Creenan, a Murrysville attorney who has defended companies against black lung claims.

National Mining Association spokesman Luke Popovich said, "we don't disagree with those who question the high costs that will come as a result of the changes and any impact on jobs." The Washington trade group represents coal companies.

Both attorneys anticipate more filings for benefits.

The new law likely will result in some miners who have diminished lung capacity from smoking, heart disease or maybe asbestos exposure, to win black lung cases, said Robert S. Brierton, a Johnstown attorney who represented Bethlehem Steel Corp. and its BethEnergy Mines in more than 100 black lung cases.

"There might be no evidence he has pneumoconiosis, but he has a pulmonary problem, then the burden is now on his employer to prove that it is not pneumoconiosis," Brierton said.

To determine disability, miners undergo a series of tests that measure lung capacity, chest X-rays and how much oxygen is being carried by the blood. Lung capacity must be diminished by 60 percent to have a total disability, said Lynda Glagola, director of the black lung clinic at Lungs At Work in Peters. The clinic, which has assisted more than 500 miners in their claims and has helped miners win millions of dollars in benefits since it opened in 2006, is supported by the federal government's Office of Rural Health Policy.

Benefits can range from $600 a month for a single person to $934 for a miner and spouse. The miners get coverage for black lung-related treatment, which is crucial because the medication they need is expensive, Glagola said.

"This is not an entitlement program. This is a disability compensation program," said Glagola.

Preston Butt, 71, of Mt. Morris, Greene County, said his initial claim for black lung benefits was rejected because he had asthma -- even though two doctors determined he suffered from black lung disease.

"I lost faith in the system. The (coal) company really fights you for it (black lung benefits). I went three years before I reapplied," Butt said. He worked 34 years in the Shannopin Mine in Bobtown, Greene County. He won his claim about six months ago, thanks to assistance from Lungs At Work, he said.

Butt said his condition "mostly stops me from doing anything."

While the changes in eligibility criteria may help miners win their claims, the new regulations are likely to increase insurance premiums for coal companies, said Jonathan W. Flower, vice president of claims for American Mining Insurance Co. of Westmont, Cambria County. The insurer represents coal companies against black lung benefit claims.

"Somewhere down the line, the rates will go up," Flower said.

Additional Information:

'69 act helps

Coal miners determined to be totally disabled from pneumoconiosis -- commonly known as black lung disease -- can receive monthly payments and paid medical benefits under the Black Lung Benefits Act of 1969.

The act also provides monthly benefits to dependent survivors. Pneumoconiosis has been a contributor or underlying cause of death for more than 73,800 workers in the United States since 1969.

Source: Department of Labor and Government Accountability Office report on the Black Lung Benefits Program, October 2009

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