Landmark Black Lung Case Argued and Won by Local Attorney (and AMR Volunteer DJ) Roger Forman

We had the privilege of talking with Roger Forman about his recent court victory in a landmark Black Lung lawsuit. Roger is a newly retired Buckeye WV Attorney, whose voice is also well known to listeners of Allegheny Mountain Radio as one of our volunteer DJs.

Roger is understandably excited about his success in the U. S. Fourth Circuit Court of Appeals case which set a precedent that will help many West Virginia Coal Miners who have been disabled by Black Lung Disease.

“I am a retired Attorney –just recently retired- , a volunteer DJ on the Radio Station (Allegheny Mountain Radio) said Roger. “I’d just like to talk to you about the case of Page Bender Jr. Page was a coal Miner for 22 years. I had the fortune of representing him for about 10 years. Finally his case resolved at the United States Circuit Court of Appeals for the 4th Circuit. The argument before the Court was January 29th and it was decided on April 2nd and handed down as a published decision.”

Roger explains just what winning this case means for miners with Black Lung.

“The import of the Bender Case is… first of all, Page has died and his widow was fighting for the benefits.. His widow Dianna, and Dianna will get those benefits unless this case is appealed to and reversed by the United States supreme Court, which I think is very unlikely” said Roger. “This case along with the Epling Case established a very important standard for how you get Black Lung cases and for how you win Black Lung cases.”

The case hinged upon the Court agreeing to use the legal presumptions established by the Affordable Care Act.

“And the 15 Year Presumption is that if you work 15 years as an underground miner and are disabled by a Pulmonary Condition, then it is presumed as a matter of law that you are disables as a result of the coal mine dust exposure” said Roger. “Even if there are other issues going on (with your health) unless the party opposing your benefit can prove that NONE whatsoever of your disability relates to your coal mine dust exposure. And that’s a very high standard”

Roger says that that legal presumption had been the law until it was removed by Congress in 1981. That 1981 law also removed the automatic Widows Benefits where by the widow of a miner disabled by Black Lung would keep her husband’s benefits even after he died. What this meant was that even if a miner’s disability was granted and collected, after his death, his widow would have to prove all over again that her husband’s disability was coal mine dust related. When the Affordable Care Act passed, so did an amendment that Senator Robert F Byrd had attached to the bill which restored that legal presumption and the Widows Benefits to what it had been before 1981. But that restored presumption and Widows Benefit had not yet been upheld by the courts until this case and the Epling case.
So, Attorney Roger Forman presented Page Bender’s case to the 4th Circuit court in January, 2015 and won the case when a decision was handed down and published on April 2nd. Roger explains that the lawyers for the Coal Mine Company had quite a burden to prove to the court.

“In order to rebut the presumption, which is what this case was largely about, (they had) to prove that coal mine dust and exposure played absolutely no role in Mr. Bender’s death or in his total disability, and that’s a very hard standard” said Roger. “And the court made it very, very clear that No Role Means No Role. But if played even a minimal role and contributed in any way to the total disability or death that Mr. Bender and his wife would still be entitled to benefits.”

Perhaps this decision was a crowning achievement for Attorney Roger Forman’s career, happening as it did right at his retirement. It is definitely an accomplishment he is deservedly proud of and happy about for his clients’ sake.

“Page Bender was a wonderful man” said Roger. “And I promised Page Bender I was going to win his case, and I’m really glad and I know that page is smiling at me somewhere. And Dianna, He (Page) is going to be relieved, not for himself because coal miners don’t worry about themselves in these cases. They are really worried about their widows and supporting their widows because in Southern West Virginia, very few of the coal mine wives and widows work. Dianna was obviously in that same situation. It’s really really rewarding to see that happen.”

If anyone wants to learn more about this case, it is U.S. Court of Appeals for the Fourth Circuit. No: 12-2034, West Virginia CWP Fund, as insurer for Logan Coals, Inc. v Page Bender Jr.; (& the) Director of Worker’s Compensation Programs, United States Department of Labor.