Berks County Bar Association The Berks Barrister Spring 2021 - 17

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the miner from a government approved list and one by a doctor
chosen by the coal company.

Then the claim goes to a Labor Department claims examiner.
It the miner is successful at that stage, he can count on the coal
company appealing to an administrative law judge. There, the
admitted evidence will include the miner's x-rays, CT scans,
lung-function test and reports from multiple doctors, as well as
those considered expert medical witnesses for the company. " A
miner might be able to afford an additional report or two, but the
medicolegal arms race was inevitably one-sided. " If the award
was upheld by the ALJ, the company lawyers can then appeal to
the Benefits Review Board. Thereafter, the case could go a federal
appeals court and then possibly to the U.S. Supreme Court.
At each stage there are backlogs and the process is fraught
with delays. For one of John's clients, the claim was finally
successful eight years after John had taken on the case and almost
eighteen years after the miner had first filed it. By then the miner
was dead and his wife was in a nursing home.

I done waited eleven months
And just a little more.

I done wore out one knob on my door
Runnin', peepin', lookin'

To see if that mailboy is gonna bring my black lung check
Up to my door.

I says, I'm gonna get it
And that's for sure.

'Cause I coughed all night last night
And the night before.2

Gary had actually filed an earlier claim in 1999, for which
he was unable to retain an attorney (despite numerous attempts,
each attorney contacted did not want to become involved-too
little fee potential given the delays, complicated medical evidence
and a bureaucratic morass). In 1998, he had been diagnosed
with pneumonia and an x-ray performed at the local Raleigh
County Hospital disclosed a lesion on his right lung, prompting
a biopsy. The pathologist, who was not told Gary was a longtime

Excerpts from " Black Lung Paycheck " by Walter Brock (retired coal miner)

Continued on next page
Spring 2021 | 17

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Berks County Bar Association The Berks Barrister Spring 2021

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