For coal miners who believe they have debilitating black lung disease, filing a claim is a lengthy process. It’s one that’s also often futile. Only about 14 percent of claims led to an award during the 2012 fiscal year, and after appeals, that number is likely even lower.
As detailed in a series called “Breathless and Burdened” published by the Center for Public Integrity last week, the small number of miners winning black lung claims could be the result of a concerted effort by both lawyers and doctors hired by coal companies to conceal and misinterpret evidence. There are numerous factors stacked against the miners in both the black lung claims process and the ways coal companies fight the claims.
Listen to my interview with reporter Chris Hamby of the Center for Public Integrity about the series:
In Breathless and Burdened, the Center for Public Integrity lays out the myriad of ways that the current system of filing for black lung claims ends up being stacked against the coal miners. In many cases, they’re up against corporate lawyers without their own legal representation. Their x-rays are read by doctors with a track record of rarely finding black lung, even when numerous other doctors have confirmed the presence of the disease. And even when black lung is confirmed, miners often have trouble proving it’s responsible for their disability. All these factors end up leading to an uphill—and often impossible—years-long struggle for coal miners with black lung to win the small workers compensation payout they’re entitled to under federal law.
Tall, lean and stoic, Fox, then 50, answered the judge’s questions with quiet deference — “Yes, sir” and “No, sir.” His brief testimony, along with the report from the examination paid for by the Labor Department, constituted virtually his entire case. Then it was Jackson Kelly’s turn. Exhibit after exhibit became part of the record — medical reports, depositions, résumés of eminent doctors who’d reviewed the evidence.
More important, however, was what didn’t make it into the record. Two years earlier, doctors had removed a suspicious mass from Fox’s lung. The purpose had been to rule out cancer, which the hospital’s pathologist had done. There is no evidence he looked for signs of black lung, or even that he knew Fox was a miner. Unknown to Fox, however, Jackson Kelly had obtained the slides of his lung tissue and sent them to two pathologists in its usual stable — doctors whose opinions typically supported the firm’s case.
This time Jackson Kelly didn’t get the answer it wanted. Both pathologists wrote reports indicating the mass likely was complicated black lung — a finding that, if credited by the judge, automatically would have won the case for Fox.
The firm’s lawyers could have accepted the opinions of the doctors they’d relied on so many times before. They could have conceded that Gary’s case had merit and agreed to pay him and Mary $704.30 a month, allowing him to escape the dust destroying his lungs. Even if they chose to fight the claim, they could have allowed their experts to see all of the pathology reports as they formed their opinions.
None of that is what the lawyers at Jackson Kelly did. Instead, the firm withheld the reports; Fox, the judge and the firm’s own consulting doctors had no idea they existed. In the months that followed, a team of Jackson Kelly lawyers built a case around the hospital pathologist’s report and its vague diagnosis of “inflammatory pseudotumor.” They encouraged the court and their own consulting doctors to view the report as the sole, definitive account of what Fox’s lung tissue revealed. Even one of the doctors retained by Jackson Kelly originally thought Fox had black lung. After being given the pathologist’s report, he changed his mind.
Then there’s the role doctors play in the process. Often claims boil down into a battle of experts, and judges tend to believe the doctor with the more impressive credentials. Usually, coal companies go to doctors at Johns Hopkins Medical Institutions, and in particular, to Dr. Paul Wheeler.
- In the more than 1,500 cases decided since 2000 in which Wheeler read at least one X-ray, he never once found the severe form of the disease, complicated coal workers’ pneumoconiosis. Other doctors looking at the same X-rays found this advanced stage of the disease in 390 of these cases.
- Since 2000, miners have lost more than 800 cases after doctors saw black lung on an X-ray but Wheeler read the film as negative. This includes 160 cases in which doctors found the complicated form of the disease. When Wheeler weighed in, miners lost nearly 70 percent of the time before administrative law judges. The Labor Department does not have statistics on miners’ win percentage in all cases at this stage for comparison purposes.
- Where other doctors saw black lung, Wheeler often saw evidence of another disease, most commonly tuberculosis or histoplasmosis — an illness caused by a fungus in bird and bat droppings. This was particularly true in cases involving the most serious form of the disease. In two-thirds of cases in which other doctors found complicated black lung, Wheeler attributed the masses in miners’ lungs to TB, the fungal infection or a similar disease.
- The criteria Wheeler applies when reading X-rays are at odds with positions taken by government research agencies, textbooks, peer-reviewed scientific literature and the opinions of many doctors who specialize in detecting the disease, including the chair of the American College of Radiology’s task force on black lung.
- Biopsies or autopsies repeatedly have proven Wheeler wrong. Though Wheeler suggests miners undergo biopsies — surgical procedures to remove a piece of the lung for examination — to prove their cases, such evidence is not required by law, is not considered necessary in most cases and can be medically risky. Still, in more than 100 cases decided since 2000 in which Wheeler offered negative readings, biopsies or autopsies provided undisputed evidence of black lung.
Two days after the Center for Public Integrity published the series, Johns Hopkins announced it was suspending its black lung program pending further investigation.