Clearing the Air

Student by Student, Case by Case, W&L's Legal Practice Clinic Comes to the Relief of West Virginia's Coal Miners

Pneumoconiosis is not a disease that most students need to worry about. But at Washington and Lee, nine law students are learning to deal with it. Pneumoconiosis is the medical term for "black lung" disease, a disabling and potentially fatal respiratory condition, caused by inhalation of coal dust, that afflicts coal miners. Miners with pneumoconiosis can seek federal disability payments under the Black Lung Benefits Act passed in 1968. Only about six percent of claimants are awarded benefits, however, due in large part to the fact that the miners frequently lack professional representation. Few private lawyers will take black lung cases because they can drag on for years and promise scant remuneration. The claims are also vigorously contested by lawyers who represent the coal companies. And then there are the ever-changing laws.

Building a Case, Piece by Piece  Mark Graham '97L and his colleagues begin with basics in learning about black lung disease and its diagnosis.

Gaining Knowledge Firsthand  Clinic participant Amy Layton '98L, pictured with National Black Lung Association President Mike South.

This obvious need for legal services, coupled with the educational benefits of participating in this type of litigation, led to the creation of a new component to Washington and Lee's Legal Practice Clinic--the black lung clinical program. Created last August under the direction of Legal Practice Clinic director Mary Z. Natkin and law professor Brian C. Murchison, students enrolled in the clinic provide legal assistance to coal miners, or their widows, who are seeking federal disability payments under the Black Lung Benefits Act.

"While we are providing a service, our goal is educational," Natkin explains. "We are not sacrificing quality for quantity--we realize we can't address the needs of all miners." There are currently about 1,500 active black lung claims in West Virginia, of which the W&L clinic is handling about 20. "The few lawyers who take claimants' cases do so because they feel it is the right thing to do," she adds, "not for the monetary incentive."

The short supply of legal services in this setting created just the sort of need that the Law School could address. In addition, the educational challenges involving the complex black lung legislation and regulations, and the development of medical evidence are providing litigation experience for the students who are participating in the black lung clinic. "Teaching the students the painstaking process of building a case, piece by piece, gathering legal and evidentiary support in the form of medical evidence, has great applicability in preparing them for the legal profession," says Murchison.

In addition, the U.S. Department of Labor is currently proposing sweeping changes in the black lung benefits process. The students have also been at work analyzing those changes and the clinic will be filing comments at the labor department's administrative proceedings. In addition to building cases for their clients, clinic participants are also gaining experience in rule-making, adjudication, and policy analysis.

Last August, Natkin and Murchison took their students to Beckley, West Virginia, where they met with clients, doctors, and members of the Black Lung Association. They also met with Dr. Donald Rasmussen, a legendary figure who was one of the first medical scientists to recognize the link between coal dust exposure and pneumoconiosis back in the 1960s. Rasmussen runs the Southern West Virginia Clinic where he examines coal miners and consults in numerous cases. During this visit, the students acquired firsthand knowledge about black lung diagnosis through demonstrations of examinations and breathing tests.

The students have since met with Mike South, president of the National Black Lung Association, and with West Virginia Secretary of State Ken Hechler, a former U.S. Congressman and longtime advocate for better occupational safety and health. And last fall Rasmussen, Hechler, and Sonny Wells, another physician who was active in the black lung debate in the 1960s, made a presentation at the Law School on the history of that debate and the legislation that emerged from it.

The nine students currently enrolled in the black lung clinic commit themselves for two semesters and receive three hours' credit each semester. The first semester is a weekly two-hour seminar in which they learn the statutes and begin to review individual cases. During the second semester, they focus on actual cases by preparing pre-hearing motions, conducting discovery, and developing medical evidence. If a student's case is scheduled for hearing, the student and either Natkin or Murchison will try the case.

When meeting clients, students gather all the information they can, most of which is medical data, such as physicians' reports and X-rays, to develop the case legally. They work the rest of the year on pre-hearing motions, discovery, developing medical evidence and trying the cases. (Many of the miners are smokers, which complicates the medical evidence even more.) Each student works some 10 to 15 hours a week on his or her case, more when hearings are pending.

Craig Allen, a third-year law student from Palm Harbor, Florida, and one of the nine currently enrolled in the clinic, helped with the formation of the black lung clinic while working at the Law School as a research assistant last summer. Like many of the students in the clinic, he first became interested in the plight of the coal miners last year as a student in Lawyering for Social and Economic Change, taught by law professor Andrew W. (Uncas) McThenia '58, '63L. McThenia took the class to some coal mines "to hang with the miners," Allen says.

"I coughed up soot for days after being there only a couple of hours," he adds. "When I realized that many of these men spent 10 to 12 hours a day, six days a week, for maybe 30 years, I felt the coal operators should help these miners who risked their lives." Allen's client was a widow who stopped receiving state benefits for black lung following her husband's death in 1994 (she was seeking widow's benefits). Allen won the case in March--the clinic's first victory--after the insurance carrier for the deceased miner conceded his eligibility.  Most of the cases are referred to the clinic by John Cline, a former VISTA volunteer and dedicated claimants' representative from the New River Health Center in Fayette County, West Virginia. If McThenia was the inspiration for the clinic, then Cline is its hero, according to Allen: "John Cline has so much spirit, so much energy."

John Cline, Craig Allen '97L

Alexa Socha '97L

Alexa Socha, another third-year student enrolled in the clinic, has two clients, one of whom is a widow whose husband died of a heart attack a few days after knee surgery. For her client to qualify for widow's benefits, Socha needs to prove that it was pneumoconiosis that made the miner more susceptible to the heart attack that killed him. Socha comes from the coal region of Pennsylvania, where her grandmother and other relatives worked in the coal mines. Her grandfather died 20 years ago and her grandmother received black lung checks, which helped her to go to college. "Since coal money helped pay my way," says Socha, "I thought if fitting that I would pay something back by helping the miners."

In laying the groundwork for the new clinic, Natkin and Murchison were not surprised by the overwhelming response of the students. "Our students see the value of filling in the gaps where the market has broken down," says Murchison. "We had many more students who were interested in doing the clinic than we could take on."  With so much student interest, and an overwhelming list of clients, the black lung clinic is sure to succeed. Murchison hopes to expand the program by establishing a one-year fellowship, ideally for a recent graduate who was has been in the program, to assist in supervising the students with their cases. "We would also like to serve as a clearinghouse for other lawyers and lay representatives who represent claimants in these cases, and serve as a repository for documents that can be shared," he adds.

Brian Murchison, Mary Natkin

A black lung clearinghouse could serve as a resource by collecting interrogatories, motions, briefs, depositions, and similar documents which have been used by claimants' representatives in black lung litigation. This would allow lawyers and lay representatives to share useful work. Annual seminars on black lung litigation could also help lay representatives solve complicated legal issues in black lung cases. Craig Allen has developed a Web page where the clinic can share information on pulmonary research [http://law.wlu.edu/clinics/legalclinic/blacklung/index.asp].

The clinic has a small fund that fronts some of the costs, mostly for medical reviews, for the pending cases. The clients reimburse the clinic for these costs, but most often this creates hardship for the clients and it takes a while for them to pay back the costs. Contributions have come from a number of alumni, including Toni Guarino '77L and trustee Pam White '77L, who recently appealed to their classmates for support for the clinic as a reunion gift: "We have an opportunity before us to help current and future law students get some meaningful practical experience, we can help some disabled miners get legal representation, and we can support the Law School in a tangible way."

Belying the outcome of Allen's case, most black-lung cases take years to settle, so the students will rarely get to work a case from start to finish. Thanks to the clinic, others will follow in their footsteps. "Even though we don't see a case to the end, it is still a very rewarding experience," says Alexa Socha, who has pored over many medical articles to understand all the terminology involved. "I'm not just playing lawyer, I'm really doing legal work."

For information on filing a Black Lung claim, contact coalmine@wlu.edu.