Others accountable?

Some victims' families sometimes try to sue a third-party contractor or manufacturer of equipment involved in an accident, because only the direct employer of the killed worker is exempt from lawsuits under the workers compensation system.

King said families of Crandall Canyon victims are looking at doing that. "We are very intensely preparing to file lawsuits," he said. While the owner of the mine is off-limits because of workers compensation, he said, they are looking at others who had sufficient input to operations and safety to hold them accountable for the accident.

King added, "The workers compensation system is not geared to recover all losses.... The more serious an injury — leading on up to death — the more that is not recovered. The gulf is getting wider."

If families win lawsuits against others for industrial accidents, they must repay the insurance company for workers compensation benefits it paid. "There is no double-dipping," King said.

Does the system give too little financial incentive for mine owners to improve safety?

Lloyd at the Workers Compensation Fund said that in general, more dangerous industries do pay higher workers comp premiums, and individual companies with a high number of claims also can have their premiums increased because of that, too.

For example, he said the National Council on Compensation Insurance has recommended a workers comp insurance premium for coal mining of $25.82 for every $100 in payroll.

That is relatively expensive. The suggested rates for a few other industries, Lloyd said, is 21 cents per $100 in payroll for clerical and office workers; $1.63 per $100 in payroll for retail store employees; $2.87 for restaurant workers; $3.52 for the newspaper industry; $9.82 for carpenters; and $17.28 for oil well drilling.

Attorney Edward Havas, a partner of King helping to represent Crandall Canyon families, said, "By themselves, the premiums and fines from MSHA (the Mine Safety and Health Administration) are not high enough to be a financial incentive to increase safety."

But he said other costs make safety wise, "including loss of production and loss of morale." He noted the Crandall Canyon disaster led owner Bob Murray to spend millions of dollars for rescue efforts, and cost millions more as he closed two mines afterward for what he said were attempts to improve safety.

Emily Spieler, dean of the Northeastern University Law School in Boston, agrees there is not much economic pressure for miner safety from the workers compensation system by itself.

"I ran the workers compensation system in West Virginia a few years ago. When I left, I was tempted to write (for a local newspaper) a story titled, 'How much does it cost to kill a West Virginia coal miner?' The answer is: not very much," she said.

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E-mail: lee@desnews.com