Berks County Bar Association The Berks Barrister Spring 2021 - 19

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And just as John thought, when Jackson Kelly did produce
all the records, they included reports from two pathologists it
had hired in the earlier claim to view the actual biopsy slide.
The two reports confirmed that the removed lung mass was
consistent with complicated pneumoconiosis.
Withholding these documents not only caused Gary to
lose his 1999 claim, but, more importantly, it meant that
he was forced to continue working, adding specks of dust
to what was already severe disease, when in fact he should
have been deemed totally disabled and removed from the
work environment nine years before, a result that would have
prolonged his life.

The ALJ considered Jackson Kelly's action to be fraud on
the court and awarded benefits in the second claim dating
back to January 1997, the time of the original claim. Appeals
followed. The Benefits Review Board held, by a two-to-one
decision, that the law firm's actions did not rise to the level of
" fraud on the court. " Benefits would only date back to 2006,
not 1997. The decision was affirmed by the federal circuit
court.

But it was not be the end of the Gary Fox story. A greater
victory was to be had, achieving Gary's dying hope, but I do not
want to spoil the ending. Just know that the Jackson Kelly firm
and others have had to change the way they defend claims.

The book is a great read, even at times a page-turner, as it
details the fights on behalf of miners beginning with the 1921
" Battle of Blair Mountain, " and continuing with the wildcat
strike involving 40,000 miners walking off the job in 1969, the
enactment of reform laws in 1969 and 1972, the conviction and
imprisonment of Donald Blackenship, CEO of Massey Energy,
and the failures and successes of promulgated regulations.
But in the end, what makes it a great read are the people.
The work ethic of the miners while facing daily danger. The
support provided by their families. The quiet determination of
Gary Fox. The single-minded pursuit of justice by John Cline.
The latter making one proud to be a colleague of his in the
profession.

Mr. Smith, Berks County Bar Association's Executive
Director Emeritus, practiced personal injury law for
almost thirty years with a concentration in workers'
compensation litigation.

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Berks County Bar Association The Berks Barrister Spring 2021

Table of Contents for the Digital Edition of Berks County Bar Association The Berks Barrister Spring 2021
