[imgcontainer] [img:bigjohnadkins.jpg] [source]Photo courtesy of Grace Adkins[/source] Big John Adkins from Enon, West Virginia, hauls his friend Bill McCutcheon. Like coal miner Gary Fox, Adkins died from black lung disease. [/imgcontainer]
I am shocked and disappointed at comments from the panel of judges in the decision handed down by the 4th District Court of Appeals in Richmond, Virginia. Early this month, the court rule in favor of Elk Run Coal Co., deciding against Mary Fox, who had filed suit over a black-lung benefits claim on behalf of her husband, a 30-year coal miner Gary Fox.
Mary Fox said that Elk Run defeated her husband’s benefits claim by engaging in “fraud on the court” by hiding medical reports that proved her husband had black lung.
The Court said that Elk Run’s conduct was “hardly admirable” and warranted “nothing approaching judicial approbation.” But other than giving a slight frown, the court did nothing and said the lawyers’ behavior did not rise to the level of “fraud on the court.”
With due respect for our legal system, it’s obvious this panel of judges are out-of-sync with coal country culture.
The judges place much of the blame for the loss of the case on coal miner Gary Fox due to his lack of “lawyering” skills. Fox, unable to find legal representation, represented himself at the evidentiary hearing in 2000 when Elk Run Coal Company appealed the case after he was awarded black lung benefits in 1999.
[imgcontainer right] [img:garyfoxdy2.jpg] Coal miner Gary Fox lost his battles with black lung and the federal court system. [/imgcontainer]
Fox spent his entire adult life, more than 30 years, in a coal mine and died as a result of black lung contracted while working there. He’s a miner, not a lawyer. He should not be faulted for mining coal instead of seeking a degree in Jurisprudence. Why does a miner need the credentials of a lawyer to mine coal? A correlation might be to take this group of lawyers or judges out of their offices to a coal mine and expect them to know how run a roof bolting machine.
Additional comments said Fox should have known to ask for evidence from the opposing attorneys and that he should have obtained legal and medical expertise support. But Fox had no choice but represent himself. He couldn’t find an attorney, and had not appeared for this hearing, he would have automatically lost his rights to receive black lung benefits.
No doubt Fox was no match for his legal opponents from Jackson Kelly Law firm, but they were the ones who withheld medical reports showing he had black lung from their own team of expert witnesses. We can surmise the legal team from Jackson Kelly did not want to risk this knowledge with their hired expert medical team.
Also, the report blames Fox for not being in a courtroom before his hearing. Why would he have cause to be in a courtroom unless he was involved in a legal battle? Working people, especially coal miners like Fox who live in remote areas of the coalfields, dedicate their lives to mining coal to supply our demand for electricity and don’t have time for second careers.
I feel it is the duty of our judicial system to understand and look out for the best interest of all their constituents. I don’t agree with the decision.
[imgcontainer] [img:grundyVAcoalop.JPG] [source]Photo by Betty Dotson-Lewis[/source] A mine operation near Grundy, Virginia. [/imgcontainer]
I’m a resident of the coalfields and I’ve seen firsthand what black lung disease can do to a miner and his family. I’ve seen black lung disease tear a big strong man to bits. I’ve watched while he wasted away to nothing – becoming depressed, desolate and disappointed. Even though this miner was a loyal and good worker for his company, the coal company turned on him after he became disabled. The company was willing to pay big money to doctors and lawyers who use questionable tactics to keep the miner from receiving benefits he was entitled to under federal law.
The 4th District Appeals Court in Richmond, Virginia failed to do their homework in placing so much blame in this case on Fox. Instead of blaming Fox for his naiveté in the legal world, the court should praise him for his courage to face his formidable opponents. He deserves praise for seeking benefits to support himself and his family after he became ill. And when the benefits awarded were taken away, he went back to work in a frail condition to support Mary, his wife, who was also ill.
I admire Mary Fox for pursuing this case after her husband’s death and her attorneys, John Cline and Al Karlin. They stood up for workers’ rights and exposed the failures of a benefits program designed to help miners who are disabled from black lung.
The Center for Public Integrity and ABC news are to be commended for airing a report on the black lung benefits program in October 2013. Following the yearlong investigation by Chris Hamby, the prominent law firm Jackson Kelly was exposed as withholding evidence of black lung in cases over the years, helping to defeat the benefits of claims of sick miners. The Gary Fox case was at the heart of this investigation.
Betty Dotson-Lewis is from West Virginia and is the author of several books on Appalachian heritage and social issues.
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