The Battle Against Black Lung Disease

For many years, black lung disease has been thought of as a relic of the past.  The last great debate over black lung disease and occupational hazards for miners happened over 40 years ago, resulting in a federal statute that requires coal companies to compensate miners who contract black lung.  The market’s movement away from coal mining toward alternative energy and natural gas has diminished the focus on black lung in recent years, but scientists, public watchdog organizations, and even politicians are working to heighten black lung disease awareness in the public consciousness.

In September 2014, researchers Blackley, Halldin & Laney published an article on the resurgence of black lung disease entitled “Resurgence of a Debilitating and Entirely Preventable Respiratory Disease among Working Coal Miners.”  Using data from National Institute for Occupational Safety and Health (NIOSH), they confirmed that even though black lung is preventable with minor workplace modifications, black lung incidence has risen over the last 40 years.  Additionally, there is a backlog of thousands of black lung compensation cases pending before administrative law judges.

An investigation by the Center for Public Integrity (CPI) and ABC News unearthed evidence that coal mining companies largely avoid compensating miners who have contracted black lung.  The first installment of the CPI investigation focused on cases where coal company lawyers withheld evidence that showed miners had advanced stages black lung disease, leading to wrongful denials of benefits.  The second installment reported that a unit of radiologists at the Johns Hopkins Medical Institutions was complicit with coal companies — mining companies who sought negative chest X-ray readings to help defeat a benefits claim primarily used these Johns Hopkins doctors.  The investigation found that the leader of the Johns Hopkins unit, Dr. Paul Wheeler, had not found a single case of “severe black lung” during the 1,500 cases that he reviewed from 2000 to 2012.

In response to these failures in the federal black lung benefits system, two senators have introduced major legislation to reform the federal black lung benefits program.  The legislation, sponsored by Senator Robert Casey (D-PA) and Jay Rockefeller (D-WV), aspires to end the duplicitous strategies used by coal mining companies.  “To say [the current state of the black lung benefits system] is shameful is an understatement,” Senator Casey said during a conference call on in mid-September.  Sens. Casey and Rockefeller believe this legislation is particularly urgent because evidence indicates black lung incidence is now at the highest levels since the 1970s, and as a result more miners are seeking benefits.  “Too many of our nation’s coal miners have been denied basic fairness and justice,” said Casey, who chaired a hearing on the issue in July.

The proposed Black Lung Health Improvements Act of 2013 seeks to eliminate systematic bias in X-ray readings by regulating doctors.  It would establish a pilot program allowing claimants, coal companies, or Labor Department officials to request a review of films by an NIOSH expert panel.  Doctors on the panel would receive a series of X-rays without information about where each one originated, include films known to be either positive or negative.  NIOSH would monitor doctors’ performance and have the authority to remove doctors who frequently misdiagnose black lung disease.  The bill also would allow miners to reopen cases if they had been denied benefits by a doctor who was subsequently discredited.  The legislation additionally strengthens criminal provisions; doctors, lawyers, and claimants could face up to a $10,000 fine and five years in prison for making false or knowingly misleading statements.

Further, the bill also extends the Labor Department’s pilot program that provides miners with better quality medical evidence, giving Labor Department doctors a chance to review and rebut evidence provided by the coal company.  The DoL’s reform efforts have been applauded by miners’ unions, and are expected to reduce the number of wrongfully denied claims.  The bill also mandates a Government Accountability Office study of the black lung benefits system, and also requires the Labor Department to implement a plan to reduce the backlog of cases before ALJs.

The bill also seeks to equalize access to lawyers for miners with black lung claims.  Mining companies can afford specialized lawyers and well-credentialed doctors, while black lung claimants often have trouble finding an affordable lawyer or doctor.  To address these problems, the bill allows claimants’ attorneys to collect reasonable fees, paid by the government even before the case is finalized and capped at $4,500.  Under current law, lawyers must wait until the case is complete to petition the government for payment.  The fee delay, combined with the low probability of victory and the backlog of cases before ALJs, has resulted in many lawyers refusing black lung cases.

As necessary as this legislation is, it will probably not be signed into law during 2014 because of political tensions between the House, Senate, and Executive branch.  In a conference call, Senator Casey acknowledged the challenging political climate and said he planned to push the bill in the November 2014 session of Congress.  “If it doesn’t work, we’ll try it again in 2015,” he said. “If you believe in the founding principles of this country, it’s hard to be against these measures.”

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