On May 23, 2014, the Department of Labor announced that it would propose a new rule regarding the disclosure of medical evidence in mining compensation cases. The announcement came just a month after the Center for Public Integrity won a Pulitzer Prize for investigative reporting for its coverage of coal companies’ failure to disclose medical evidence of black lung disease during mining compensation hearings. The first installment of the three part series, Breathless and Burdened, found that lawyers at the law firm Jackson Kelly PLLC deliberately withheld evidence that miners had black lung as a systematized scheme to avoid paying benefits. However, the January Fourth Circuit decision in Fox et al. v. Elk Run Coal Co. held that such withholding did not constitute a “fraud of the court.” While the Department of Labor has not specifically spelled out the nature of the new rule, it will likely address this issue head on. They issued the following statement: “To ensure that coal miners have full access to information about their health and to enhance the accuracy of entitlement determinations, this rule would address disclosure of medical evidence.”

The Story of Gary Fox

The Breathless and Burdened series covers the story of Gary Fox, who spent more than twenty-five years working in Appalachian coalmines. In 1999, after experiencing shortness of breath and other symptoms related to black lung for over fifteen years, he applied for federal benefits under the Black Lung Benefits Act. The Act established the Division of Coal Mine Worker’s Compensation, which oversees compensation claims. A U.S. Department of Labor doctor diagnosed Fox with complicated coal workers’ pneumoconiosis, the most lethal form of the disease. He met his prima facie case and his employer, Elk Run Coal Co., was ordered to pay him monthly benefits.

Elk Run appealed the decision. At a hearing before an administrative judge, Fox was opposed by an attorney from Jackson Kelly PLLC. That attorney allegedly had access to proof that Fox had black lung, which he withheld from the court. The judge ruled in Elk Run’s favor and Fox continued to work without benefits until 2005, as his health continued to deteriorate precipitously. In 2005, he filed a second claim with the assistance of an attorney. His attorney, John Cline, suspected that Elk Run had concealed important documents and filed a discovery motion with the court. Upon the motion being granted, Jackson Kelly conceded Fox’s claim so as to avoid disclosure.

Fox v. Elk Run Coal Co.

In 2008, Fox sued Elk Run for “fraud of the court,” arguing that Jackson Kelly had a legal obligation to disclose all its evidence. Fox won his claim before the administrative law judge and Elk Run appealed. The Benefits Review Board reversed, finding that the company’s conduct was not sufficiently egregious. In January 2014, the Fourth Circuit affirmed the Benefits Review Board,[1] ruling that Elk Run’s actions were not so egregious as to constitute “fraud of the court.” The court found that Fox was unable to reach the “very high bar for any litigant” of showing an egregious subversion of the legal process. They reasoned that a mandate of disclosure would require a civil Brady rule, “where parties would be obligated to disclose or at least identify any evidence helpful to their opponent regardless of whether it is privileged.” They did not find the threat of harm in this administrative hearing to be comparable to the harm a prosecutor could inflict in withholding evidence in a criminal defendant’s trial.

Pending Reform

Fox passed away on April 14, 2009, unable to breath as a result of the disease. Thanks to the Breathless and Burdened series as well as public backlash to the Fourth Circuit’s decision, the Department of Labor has announced that it will issue a new rule related to disclosure. However, we have few details and cannot be sure of the extent of any new disclosure requirements. We will have to wait until January 2015 at the earliest to see what protections are put in place to support largely pro se miner’s seeking compensation for their workplace-contracted black lung.

[1] Fox ex rel. Fox v. Elk Run Coal Co., Inc., 739 F.3d 131 (4th Cir. 2014).