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Black Lung Patient Fights for Miner Benefits in His Final Days

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Robert Bailey. Photo: Jessica Lilly/West Virginia Public Broadcasting

Robert Bailey was a coal miner for 36 years. He began working in McDowell County, and after it became too hard to breathe, he retired from a mine owned by Patriot Coal in Boone County. Bailey first told his story with WVPB in June 2014. He shared his final story with Inside Appalachia host, Jessica Lilly, on February 15, 2019. 

“It’s a struggle just to receive the help that you still need,” Bailey said back in 2014. He was still in the process of a lung transplant. At this time, Bailey was waiting to hear if Patriot Coal’s insurance company, Underwriters Safety and Claims, would approve his appointment for a medical evaluation. He’d already had to cancel one appointment.

Bailey had already been approved for federal black lung benefits by the U.S. Department of Labor and his doctor told him he needed a double lung transplant.

Black lung disease made it difficult for Bailey to breathe. “It’s almost like drowning,” he said. 

Robert Bailey. Photo: Jessica Lilly/West Virginia Public Broadcasting

As Bailey waded through another bureaucratic process, the clock was ticking, and he was running out of time.

“They told me that as soon as my testing was done that they’d put me on a list,” Bailey explained. “So that tells me that they don’t think that my lungs have very much life left in them.”

Transplant Grants Bailey 3+ More Years

Four months later, Robert Bailey’s lung transplant was approved by Patriot Coal’s insurance company. But when the bankruptcy was finalized, the company had shed these responsibilities. So, Bailey said the money came from the Black Lung Disability Trust Fund, which covers black lung medical benefits for bankrupt coal companies.

A double lung transplant comes with its own set of health challenges. About half of all adults who receive a double lung transplant live just five years after the surgery.

Robert became an advocate for miners with black lung and spoke twice to Congress during Senate hearings, urging lawmakers to act quickly in order to reduce the backlog of black lung cases still needed to be evaluated.

“I’m hoping that through my experience other people could maybe have better results,” he said.

Final Days

About two months ago, Robert learned he had an aggressive form of  liver cancer. Doctors gave him weeks to live, and he was put on hospice care when he got home. He wanted to share more of his story.

Robert Bailey (right) kisses his wife of 36 years, Brenda Bailey (left), after his lung transplant. Photo: Courtesy Bailey Family

“I wasn’t really shocked about it really,” Bailey said. “It wasn’t really news that I was looking forward to hearing, but I know it was news that we would have to deal with. But God gave me first breath. He’ll take my last one.”

Robert reflected on his struggle with black lung. He said that doctors told him his liver cancer was probably linked to medications he took as part of his treatment after his lung transplant. Still, he said, these side effects of his transplant wouldn’t have even been an issue if he hadn’t contracted black lung to begin with.

Mr. Bailey was a humble man, but he still wanted to share his story. He said he hoped that his suffering, and his death, wouldn’t be in vain.

“Even though I have been blessed with this extra time that I wouldn’t have had, it would be so much better in the long run if the disease itself would be conquered,” he said.

Robert said he hoped his story might help inspire lawmakers to take more steps to improve health conditions for other miners, and perhaps even prevent other coal miners from the same suffering. He pointed out that laws to protect coal miners typically don’t change until miners die, and sometimes not even then. 

Robert Bailey, February 15, 2019. Photo: Jessica Lilly/West Virginia Public Broadcasting

“Most laws across the nation, most laws [have] been written with blood. I don’t want the things I went through just to drop and no knowledge to be gained.”

As for advice for any young miners today, he said it’s important to do a good job during the day but it’s also important to be able to come back.   

“I know a lot of them does a lot of things for the money, and they’re offered a lot of money to meet certain goals. But you can meet a goal today that will take you out of this world tomorrow,” Bailey warned.

Robert Bailey passed away 28 days after this conversation. 

This story is part of an episode of Inside Appalachia about black lung disease. It was originally published by West Virginia Public Broadcasting.

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Congressional Panel Hears Black Lung Testimony, MSHA Chief Says No New Policy Needed

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Retired miner Gary Hairston shared with Congress the challenges of living with black lung. Photo: Courtesy Committee Livestream

This article was originally published by the Ohio Valley Resource.

A Congressional panel heard testimony and had some sharp questions Thursday about the epidemic of black lung disease among Appalachian miners. Labor leaders are calling on federal regulators to strengthen protections for miners and several lawmakers wanted to know why the country’s top mine safety agency is not doing more in response to the dramatic increase in the preventable but deadly disease.

Progressive massive fibrosis, the most severe form of black lung disease, now afflicts roughly 2,500 miners, depriving them the ability to work, play and complete simple tasks, like walking to get the mail. A 2018 investigation from NPR, PBS Frontline and the ReSource found that far more miners had PMF than had been recognized in government reports, and that those cases were concentrated in central Appalachia.

A growing body of research indicates silica dust exposure contributes to the sharp rise in cases of black lung disease, which now afflicts as many as one in five experienced central Appalachian coal miners. Silica dust can be 20 times as harmful as coal dust alone, and the quartz-rich rock that produces it is common in central Appalachian mines. But federal regulators have resisted regulating silica dust exposure.

Congressional Oversight

Thursday’s hearing focused on how regulators have limited exposure to toxic silica dust, which is prevalent in the rock surrounding central Appalachian coal seams and which researchers believe is driving the dramatic rise in black lung disease.

Speaking to a workforce protection subcommittee of the House Education and Labor Committee, disabled West Virginia miner Gary Hairston recounted working in dust so heavy he could barely see. “I can’t play with my grandkid,” Hairston said. “I never thought at 48 I’d be unable to support my family.”

United Mine Workers of America president Cecil Roberts criticized the federal Mine Safety and Health Administration, or MSHA, for its reliance on companies to report dust levels. Roberts compared that to asking drivers to call the police and report their own speeding. He also urged legislators to require MSHA to issue an emergency temporary standard, which would allow the regulatory agency to enforce stricter silica monitoring standards before potentially decades-long research has been completed.

“Coal miners don’t have any time,” Roberts said.

MSHA chief David Zatezalo, a former mining company executive, has given conflicting answers to NPR and Ohio Valley ReSource reporters when questioned about the effects of silica dust exposure.

In Thursday’s testimony, Zatezelo told the subcommittee he does believe silica dust contributes to the surge in black lung cases. He championed his agency’s 99-percent compliance rate with existing standards. But he still faced tough questions over MSHA’s reluctance to strengthen  those standards to a level similar to that enforced by another workforce protection agency, the Occupational Safety and Health Administration.

“Due to the decades-long latency period between exposure and disease manifestation, a medically valid study cannot be completed in the near term,” Zatezelo said. “But MSHA anticipates the study will confirm that dramatic increases in sampling and compliance translate into reduced black lung incidence going forward.”

In what was hailed as a long-overdue change, MSHA in 2014 implemented a rule further limiting coal dust exposure, but that rule did not specifically target silica. Under the rule, when a mine exceeds coal dust or silica limits, it is placed on a reduced standard for coal dust, but not silica. Regulators say silica is difficult and expensive to monitor, so coal dust is used as a proxy for silica exposure. But the 2018 NPR investigation found thousands of instances where lowering coal dust standards overall did not bring silica dust to a safe level.

Robert Cohen, the director of the Mining Education and Research Center at the University of Illinois at Chicago, said miners who died recently were more than twice as likely to show signs of disease from silica, as opposed to disease from coal dust alone. He echoed Roberts’ call for stricter silica standards in line with those currently applicable to construction workers and workers in industries other than mining.

“Those regulations are stricter, they call for a lower level of silica dust to be the permissible limit, and I think that’s something we should really strongly consider,” Cohen said.

Trust Fund Concerns  

Lawmakers also heard concerns about the federal Black Lung Disability Trust Fund, which helps pay medical costs for about 25,600 miners disabled by the disease.

After initially promising to support the fund, Senate Majority Leader Mitch McConnell of Kentucky allowed the tax on coal companies that supported the trust fund to lapse to a lower level at the end of last year. That lower tax rate on the industry will likely push the trust fund further into debt.

Cindy Brown Barnes, the director of education, workforce and income security at the Government Accountability Office, said the already overburdened trust fund would face further challenges as more coal companies enter bankruptcy.

Brown Barnes said that if that industry tax is not restored to its pre-2019 level or higher, the fund may not have enough money to make payments to disabled miners by 2020 and will have to begin using taxpayer money.

“By 2050, our simulation shows that outstanding debt could reach $15 billion,” Brown Barnes reported.

As the black lung epidemic worsens, more miners and their families will likely rely on the trust fund.

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As Calls For Action On Black Lung Disease Grow, Regulators Show Little Indication Of Change

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Radiologist Brandon Crum delivers grim findings from his clinic in eastern KY. Photo: Sydney Boles, Ohio Valley ReSource

This article was originally published by Ohio Valley ReSource.

Harold Sturgill was disabled by black lung disease when he was 58 years old. Now he advocates for disabled miners.

“When it comes to the mining companies, and it comes to the worker, it’s still all about production,” Sturgill said. “They could care less about me, how much dust I suck in, or how long I’m going to live because somebody else is there to take my place.”

Sturgill worries that without meaningful action to protect miners, his son, who is also a miner, will contract the same illness. “A man’s gonna feed his family whether it kills him or not,” he said.

Sturgill shared his story at the West Virginia Black Lung Association conference the first week of June. It was the first such meeting since an NPR investigation and PBS Frontline film put the spotlight on central Appalachia’s growing epidemic of black lung disease and the failure of regulators to meaningfully address it.

As many as one in five experienced coal miners in the region has some form of black lung, which is progressive, debilitating, deadly and preventable. At the conference, researchers presented more evidence of the growing number of cases, and specific practices likely putting mine workers at risk, and the head of the mine workers’ union issued a rousing call for action.

Congressional leaders have scheduled hearings later this month to investigate. But federal mine safety regulators show little indication of making any meaningful change to policies meant to protect miners from harmful dust exposure.

A Growing Epidemic

An investigation by NPR and the Ohio Valley ReSource beginning in 2016 found that far more miners had progressive massive fibrosis, a more serious type of black lung disease than had been recognized in government reports. More than 2,000 miners have PMF, and rates of the disease are significantly higher in central Appalachia than in other coal-producing regions.

An X-ray image of an Appalachian coal miner with black lung lesions. Photo: Adelina Lancianese, NPR

Brandon Crum, a radiologist in Pikeville, Kentucky, was among the first caregivers to sound the alarm about the remarkable number of sick miners he encountered. He says the last 12 months have been the worst of his career as more cases added up.

“I started out with 60,” he told the conference audience in Pipestem, West Virginia. “As of last week, I had 246 cases of complicated black lung in my clinic alone.”

Crum says there are even more cases of simple black lung, chronic bronchitis and other forms of lung disease that result from dust exposure in coal mining.

Crum has seen younger miners disabled by black lung, and a surge in a new form of the disease called diffuse dust fibrosis, or DDF.

“This is something I’ve been picking up over the last six to 12 months, and it’s increasing in frequency and it’s also increasing in severity,” Crum said.

DDF can quickly make it hard for miners to breathe, and Crum said an increasing share of lung transplant surgeries are for miners with DDF. The condition is likely attributable to increased exposure to silica dust.

Silica dust is formed when mining equipment cuts into surrounding rock layers and it is far more toxic than coal dust alone. The rock in central Appalachian coalfields is higher in silica than the rock in other mining regions, and miners are drilling thinner coal seams, requiring them to cut through more rock to gain access to coal.

Researchers at the National Institute for Occupational Safety and Health, or NIOSH, say they are finding more evidence of silica dust exposure in the images of the lungs of sick miners.

“There’s a specific type of abnormality that’s associated with silicosis,” NIOSH researcher Scott Laney said. “And what we’ve seen is a six-fold increase in the time that we’ve been looking at it, since the 80s, in these silicotic nodules on the X-rays.”

According to a 2019 NIOSH research paper, the prevalence of silicotic nodules has remained steady in non-Appalachian coal mining regions but it has skyrocketed within central Appalachia.

Fellow NIOSH researcher David Blackley said his team had also found an increase in lung transplants in recent years.

“We think there have probably been between 60 or 80 transplants done for coal worker’s pneumoconiosis since the 90s,” Blackley said. “And then just over the last couple of years, we’ve seen 10, 12, 15 per year.”

Blackley said the registry that tracks lung transplants likely undercounts the number of transplants for black lung, also known as coal worker’s pneumoconiosis, because the condition can be misdiagnosed.

The transplants are risky and can cost upwards of $1 million, but as a last resort, the surgery can add a few years to a sick miner’s life.

Stalled Regulation

The mining community has known since the 1970s that silica is far more toxic than coal dust alone, and federal researchers and miner advocates have fought for decades to implement more stringent coal dust standards. But those efforts have stalled, often because of pressure from industry.

In 2014 the Mine Safety and Health Administration, or MSHA, approved a rule further limiting coal dust exposure and fully applied the rule to industry practice in 2016. It was hailed as an important and overdue move to protect miners but that rule did not specifically address silica dust exposure.

Photo: Adelina Lancianese. Illustration: Alexandra Kanik. Read more about living with black lung >>

Currently, when a mine exceeds coal dust or silica exposure limits, the portion of the mine with elevated levels is placed on a reduced exposure standard for coal dust overall, but not for silica specifically. Regulators say measuring silica dust is difficult and they essentially use coal dust measures as a proxy indicator of silica dust exposure. However, the NPR investigation and a new NIOSH study found thousands of instances where lowering overall dust levels did not reduce silica dust to safe levels.

Despite the mounting evidence of silica’s role in the epidemic, there is little sign that regulators are planning to do anything differently to control dust exposure. Under the Trump administration, legislators and regulators have made moves to change some health and safety controls and raised concerns among health advocates that the changes would weaken protections in order to reduce costs for the mining industry.

David Zatezelo, a former mining executive President Trump appointed to lead MSHA, said in a speech at West Virginia University in September that silica must be controlled. But in an interview immediately afterward, he told NPR “the science isn’t in” yet on a link between silica exposure and severe black lung disease.

Former mining executive David Zatezalo leads the U.S. Mine Safety and Health Administration. Photo: Jesse Wright, WVPB

The ReSource caught up with Zatezelo at a reception following the formal events at the conference in West Virginia. As bluegrass played in the background, Zatezelo pulled up MSHA’s latest regulatory agenda on his phone.

Zatezelo said that because black lung disease can take 10 to 15 years to manifest after dust exposure, it’s too soon to say whether the 2014 rule is working or not. “We’ve put out an RFI on it,” he said, referencing the agency’s request for information from stakeholders. “We’re soliciting feedback.”

Calls for Change

Speaking at the West Virginia conference, United Mine Workers president Cecil Roberts called for increased regulation of silica dust.

“You could draw a circle around southeast Kentucky, southwest Virginia, and southern West Virginia. That’s where it is,” Roberts said, referring to the alarming rise in cases in central Appalachia. “That’s where miners are getting sick. That’s where miners are dying. And anybody who tells you, ‘We need more information.’ They’re lying.”

Roberts called on Congress to step in if regulators would not, and he may get his wish. Democratic Congressman Bobby Scott of Virginia, who chairs the House Committee on Education and Labor, pledged to conduct hearings in response to NPR’s 2018 investigation.

“Despite the stronger mining safety standards adopted during the Obama administration, the long-standing failure to meaningfully limit mine workers’ exposure to crystalline silica—which is 20 times more toxic than coal dust–has resulted in a surge of the most lethal form of black lung disease,” Scott said in a statement. “Congress has no choice but to step in and direct MSHA and the mining industry to take timely action.”

A committee staffer confirmed on background that those hearings are scheduled for June 20.

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Still Fighting: These Widows’ Stories Show Larger Effects of Black Lung Epidemic

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Vickie Salyers with a picture of Gene, who died in 2013. Photo: Ohio Valley ReSource

Nancy and Rich Potter had the kind of marriage that made other couples jealous. He’d take her on spontaneous trips. She’d wear her Daisy Dukes just for him.

Joyce Birman said her late husband, George, made a terrible first impression. It was his apology for it that made her fall for him, hard.

Vickie Salyers’ husband, Gene, loved hunting and fishing, but he loved being a father and grandfather most of all.

Potter, Birman and Salyers all married eastern Kentucky coal miners. And like countless Appalachian women before them, they each watched as their loved ones became ill.

“He would cough up this real gross stuff,” said Potter. “It even got to the point – we had to raise the head of our bed and put bricks under it so it would raise his head up.”

Appalachia is experiencing what researchers call an epidemic of black lung disease. An investigation by NPR and Frontline found that regulators for decades failed to protect miners, despite knowing that exposure to silica dust was contributing to a surge in the illness. One in 10 coal miners (and one in five coal miners in Appalachia) suffer from some form of black lung.

Vickie Salyers’ and Joyce Birman’s husbands both died in 2013. Nancy Potter lost Rich in 1997.

The women sought federal black lung benefits through the Department of Labor. Their experiences show how a system designed to help provide for coal mining families became a complicated and fraught bureaucracy.

A flow chart on how to apply for federal black lung benefits.Credit: Ohio Valley ReSource

“The black lung benefits process is really adversarial,” said Evan Smith, an attorney with AppalReD Legal Aid who represents miners and widows in black lung litigation. “For people who just kind of file a claim and think they can figure out the system on their own, sadly they’re really at a disadvantage.”

Birman, Potter and Salyers all fought for years to get benefits. The women spoke of their pride in their husbands’ work, and their anger at the coal companies who fought to deny them the benefits they felt their husbands deserved.

Their stories reveal the broader toll of black lung disease on coal mining communities, families, and especially women, whose experiences are often missing from stories about Appalachian mining.

It’s most often women who care for the sick, struggle with the paperwork, and are left with the painful memories.

Vickie Salyers

Vickie and Lowell “Gene” Salyers looked at a lot of trailers before they settled on the one they’d come to call home. “It was the first new thing we ever had,” Salyers remembered.

They moved into the Rush, Kentucky trailer in 2002. “Our first year in this trailer, he bought me a new Crock-pot and a new sweeper,” she said. “I guess I’ll remember that forever. I guess ‘cause we had a new house, he thought I needed a new sweeper to go with it.”

Salyers fears that without black lung benefit payments she could lose her trailer. Photo: Provide by Ohio Valley ReSource

Salyers remembered Gene as a principled man who wanted the best for their family. In Boyd County, Kentucky, where the opioid epidemic is particularly pronounced, Salyers said Gene refused painkillers even in the worst of his illness to set a good example for their son, Zach.

“You have that one person who you love with your whole heart, and he was mine.”

Gene worked at a coal terminal on the Big Sandy River, loading barges with coal. “What Gene had to do at these terminals often involved crushing coal, it involved operating heavy machinery that would get clogged,” said Smith, Salyers’ attorney in her case against Gene’s employer, KenWest Terminals. “It ended up being very dusty work, handling all this coal, even though he was never going underground.”

Gene started to get sick around 2006. He was treated for repeated bouts of bronchitis before receiving a lung cancer diagnosis on Christmas Eve, 2009.

“He had a lot of serious surgeries,” Salyers said. After complications from a lung surgery, doctors left Gene with an exposed wound that Salyers had to clean and treat daily for the remaining four years of Gene’s life.

“He couldn’t hardly eat anything, he couldn’t breathe. He would just gasp.”

The family lost both their incomes as Salyers devoted her life to treating the open gash in Gene’s side. If Zach could sit with Gene for a few hours, Salyers would try to clean someone’s house or mow someone’s lawn to bring in a few dollars.

Congress in 1973 passed the Black Lung Benefits Act, which provides monthly payments and health benefits to miners who are totally disabled due to black lung, or coal worker’s pneumoconiosis (CWP), caused by coal employment. The law also guarantees benefits to the dependents of eligible miners who have passed away.

According to the Department of Labor, there were more than 6,000 federal black lung benefits claims filed in 2018 across the country. Of those, 740 were filed by dependents, most commonly widows.

Credit: Ohio Valley ReSource

Gene didn’t file his black lung claim until he was already quite sick. “Ultimately,” Smith said, “he didn’t get to see the outcome of his claim because he was so sick when it started.”

Gene died in 2013, in a hospital bed in the corner of the trailer he had been so proud of.

Black lung benefit litigation seemed far too much to think about in the days and weeks after Gene’s death. “They ask you all these questions, and hello, I’m country. I don’t know all this stuff, okay?” But her son reminded her that filing the paperwork was free, and she could use the benefits money.

Salyers’ first claim was denied at the district director level, which is where all federal black lung claims are first filed. The claim was denied, Smith said, because Gene had been too sick to get tested for CWP, “and the judge didn’t really know what to do with that.”

Salyers didn’t take no for an answer. She brought her claim before an administrative law judge, who found in her favor.

KenWest Terminals appealed, arguing that Gene’s lung disease could be attributed to his smoking, not his years breathing coal dust.

Salyers’ case made its way from the initial hearing to the office of the administrative law judge, the benefits review board and finally to the 6th U.S. Circuit Court of Appeals.

As Salyers remembered it, each level brought new anxieties. “They [KenWest Terminals] have so many days to appeal it, and here’s what they do: They wait till that last day. You know, you get excited a little bit, and then they wait till that last day and they appeal it. And that starts the process over again. And that went on for two years, I betcha, or longer.”

With Smith’s help, Salyers has begun receiving $660 per month, a sum that fails to cover her basic needs. Each month she faces a choice between paying her trailer payment or her utility bills.

In October the court awarded Salyers $48,000, but she has not received that payment.

Mark J. Grigoraci, an attorney who represented KenWest Terminals, said he felt the judges in the case had not sufficiently weighed Gene’s heavy smoking and other lung conditions. “Mr. Salyers’ own doctors said he was disabled due to COPD,” Grigoraci said.

But black lung legislation includes a legal definition of CWP for a person who worked for more than 15 years in the coal industry. If a worker is disabled due to “any chronic lung disease … arising out of coal employment,” that person is presumed to meet the legal standard for CWP.

“There can be a tension between what the doctors think the medical consensus is and how the law has defined the conditions that are compensable,” said Smith.

Days before Christmas, 2018, Salyers learned she was facing eviction from the trailer she and Gene called home. Her brother made an emergency payment to keep her in her home through the holidays, but it is unclear how long Salyers has until the trailer is repossessed.

Grigoraci said he didn’t know why Salyers had not received the lump sum in addition to her monthly payment. The Department of Labor did not return a request for comment.

“I’m about to lose the only thing that me and my husband had together,” Salyers said. “If they had to sit here and see him die, they would not put people through that. They would not. They would just give them the benefits and say it was deserved.”

Joyce Birman

George Birman loved gardening. He loved surprising his children with little gifts. And he loved working in the mines. He felt like a father figure to younger miners, Joyce Birman said. She remembered that every day he would leave some of his lunch for his kids to find when he got home.

Birman remembered the lives of the women in her community of Lynch, Kentucky, shaped by the mining industry for as long as she can remember. “When an ambulance would go by near the mines, all the women would go out and line the street to see if it was their husband or not.”

Miners joke, bleakly, that if the big rocks don’t get you, the small rocks will. When George began to lose stamina and struggle for breath, Birman took him to apply for black lung benefits. They were told that at 70 percent, George’s blood oxygen level was too good to qualify. The cutoff is 69 percent.

Joyce Birman, whose husband George died in 2013. Photo: Ohio Valley ReSource

“He slept in the recliner,” Birman remembered, because his breathing prevented him from being comfortable lying down. “When I’d hear him wheezing, it would really upset me, because I thought, ‘Here this man has worked so hard all his life, and they do not want to give him benefits for what he done.’”

“He always told me, he said, if I go first, you make sure and have my lungs biopsied. And I did. And I got his black lung [diagnosis]. I just got my money recently. It took five years, because I started right after he died, but I got it.”

Birman used the money to put a new roof on her house, which she says was badly needed.

Smith, who also represented Birman, said many women use black lung benefits money for home improvement projects. Since the miner was typically the primary breadwinner, spending money on the home is another reminder of the loved one’s providing for the family even in death.

Deeply religious, Birman thinks of George’s sacrificing his health – and, ultimately, his life – in the mine the same way Jesus sacrificed his life on the cross.

Nancy Potter

Rich Potter never let Nancy forget how he loved her. “When I’d go by, he’d wink at me all the time,” she said. “If I put a dress on, he’d tell me, ‘You’re so pretty!’”

Nancy and Rich spent many happy years in Elkhorn City, Kentucky, raising children from previous relationships and from their own. Rich worked as an underground miner. Nancy stayed home with the children and sometimes worked in a nursing home. They loved to go hiking with Nancy’s sister and her husband.

After 20 years working in underground mining, Rich started a small business trucking coal.

Nancy noticed Rich getting sick in the later years of their marriage. “You know, at first, I thought, why isn’t he participating, getting out, playing basketball or doing whatever? But he said he just didn’t – he got tired real easy.”

Nancy Potter has fought for benefits for more than 20 years. Photo: Ohio Valley ReSource

“It took 45 minutes to get the ambulance here from Elkhorn, which is five miles up the road. So we got him on the floor, and my 18-year-old daughter started doing CPR on him. She had real long hair, and I could see the hair just flying through the air, with her working on him. And we’re all crying. And he just looked at me with those big, brown eyes, and he died that fast.”

Potter’s grief disoriented her. She recalled sitting in her car at an intersection near her house, unable to remember a route she’d been driving for years. Her son found her there, crying. But Potter was caring for her ailing mother, and she was in the process of adopting her daughter’s one-year-old child. Taking time to grieve wasn’t an option.

Potter took on some hours in a nursing home, but without Rich’s income, money was tight. She decided to try again to get black lung benefits. Her initial claim was denied. The insurance company fighting against her successfully blamed Rich’s black lung disease on his smoking, not his 21 years of coal employment. Besides, Rich had died of a heart attack, not lung disease.

Potter appealed the decision in 2000. A judge told her the case was closed. A new claim in 2000 was denied in 2002 because, according to Potter, no new medical information was available.

“How could there be new information?” Potter asked. “He’s dead!”

In 2009, the black lung Benefits Review Board found that Potter’s due process rights had been violated 12 years earlier when her case was heard at an informal conference instead of a hearing. Her original 1997 claim was still viable if she wanted to pursue it.

Potter pursued it, and lost.

She was furious. “I just always thought, I’m going to get it any time. Because I know he had black lung. And they know he had black lung. But he died with a heart attack, and they said it had nothing to do with black lung. And I said, how can that be? Because it puts an undue burden on you, on his heart.”

Potter requested another chance. She hired an attorney, Joseph Wolfe, who found that Rich’s autopsy slides had been missing for years. She learned in 2013 that a doctor who had performed Rich’s autopsy has been implicated in a malpractice scandal, and his autopsy was no longer being considered, although he had been in good standing at the time the work was conducted.

Lynn Sutter is a case writer who works with Joseph Wolfe and supported Nancy in her case. “Perhaps in the annals of black lung litigation there has never been a decision that matches this one for cruelty,” Sutter wrote in a petition to the Department of Labor. “What has happened since the filing of the first widow’s claim in 1997 has been exceptional, unusual, singular and astonishing.”

Though Potter was widowed at 45, she says she’ll never love again. “The most I’ll touch a man is hugging the preacher on Sundays,” she said. For her, keeping Rich’s black lung case alive is like holding on to a tiny piece of him. “It’s due him, and I’m going to stay with it and fight it until the day I die.”

This story was originally published by the Ohio Valley ReSource.

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