Coal Tattoo

Industry seeks to stall black lung protections

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The latest news on the black lung issue is this:

Coal companies are asking an appeals court to block implementation of the second phase of the U.S. Mine Safety and Health Administration plan for addressing coal miners’ exposure to respirable dust, the cause of black lung disease.

Parties such as Murray Energy Corp., the National Mining Association, Walter Energy Inc. and the Alabama Coal Association are seeking to block implementation of the remainder of the rule ahead of its Feb. 1 rollout date. The rule was unveiled in April 2014 and aims to lower occurrence of black lung, a disease that has been a contributing factor in the death of 76,000 coal miners since 1968.

As that report, from SNL Financial’s Taylor Kuykendall, continues:

The industry argues the rule was unlawfully promulgated without the participation of the National Institute for Occupation Safety and Health. Already, the filing states, the rule has imposed substantial burdens and costs in the form of re-engineering mines, purchasing expensive equipment, training and hiring personnel and new government certifications.

“These costs have hit a coal industry substantially weakened financially even compared to the already-weakened state it was in when the dust rule was promulgated in 2014,” the filing states.

You can read the industry court filing here, and there’s another media report on the issue out in the Herald-Leader:

The coal industry is seeking to forestall new standards aimed at cutting miners’ exposure to breathable dust that can cause deadly black lung disease.

Feb. 1 is the start date for the second phase of the rule. It would require miners to wear continuous personal monitors to check their exposure to dust, and companies would have to do more frequent sampling to check for compliance with dust limits.

Sad news: Dr. Donald Rasmussen has died

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Here’s the sad news, as reported for the Charleston Gazette-Mail by our Dr. Paul Nyden:

Dr. Donald L. Rasmussen, an internal medicine specialist who helped spark the 1969 Black Lung Strike, died on Monday. He was 87. Born on Feb. 24, 1928, Rasmussen grew up in Manassa, in the San Louis Valley in Colorado.

After attending medical school at Utah State University, Rasmussen joined the Army in 1955 as a captain who specialized in internal medicine. He learned a lot about chest diseases and became chief of chest diseases at Brooke General Hospital in San Antonio, Texas.

When he left the Army in 1952, Rasmussen came to Beckley and began working at the Appalachian Regional Hospital and testing coal miners for pneumoconiosis, or black lung disease.

Throughout the 1960s, Rasmussen became involved in groundbreaking research about black lung, a sometimes-fatal disease caused by inhaling coal dust.

“Rasmussen advanced his conclusion that simple pneumoconiosis, which frequently did not show up on lung x-rays, nevertheless caused the breathlessness among miners that might be apparent only through exercises on a treadmill accompanied by a blood-gas test,” former Congressman and Secretary of State Ken Hechler wrote in the West Virginia Encyclopedia.

Here’s the statement issued by the United Mine Workers of America:

We are extremely saddened to learn of the passing of Dr. Donald Rasmussen today. Because of his courage and determination, thousands of miners who suffer from black lung are getting treatment and benefits that they would not otherwise get.

He was a pioneer in advocating for miners who have this insidious disease. When other doctors were taking the company line and denying that black lung existed, Dr. Rasmussen was testifying before state legislatures and Congress, fighting to win recognition that breathing coal dust was killing miners.

The hearts and prayers of the entire UMWA family are with the Rasmussen family. They have lost a loved one, and coal miners have lost a strong advocate who will long be remembered.

Severe black lung reaches near-record levels

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There’s a new paper out this morning that has some scary news about the continued resurgence of black lung disease in the Appalachian coalfields.  It focuses on progressive massive fibrosis, or PMF, an advanced, debilitating, and lethal form of coal workers’ pneumoconiosis with few treatment options and no cure.  Here’s the bottom line:

Just 15 years ago, PMF was virtually eradicated, with a prevalence of 0.08% among all CWHSP participants and 0.33% among active underground miners with at least 25 years of mining tenure. Since that time, the national prevalence of PMF identified through the CWHSP has increased; the rate of increase in the central Appalachian states of Kentucky, Virginia, and West Virginia has been especially pronounced.

Excessive inhalation of coal mine dust is the sole cause of PMF in working coal miners, so this increase can only be the result of overexposures and/or increased toxicity stemming from changes in dust composition (2). During 1998 to 2012, NIOSH identified 154 cases of PMF among CWHSP participants, 125 of whom were long-tenured underground coal miners in central Appalachia.

In 2012, the prevalence of PMF in this group of working miners reached 3.23% (5-year moving average), the highest level since the early 1970s.

Here’s the chart:

Chart Showing Resurgence of Severe Black Lung in KY WV and VA

The authors of the new study, NIOSH researchers David Blackley, Cara Halldin and A. Scott Laney, wrote:

Each of these cases is a tragedy and represents a failure among all those responsible for preventing this severe disease.

Bailey

As I was writing  this Wednesday morning, I’m listening in on today’s big U.S. Senate committee hearing on the federal Environmental Protection Agency’s proposal to reduce greenhouse pollution from coal-fired power plants. There was quite a lot of political theater, though, and my mind kept wandering back to yesterday’s Senate HELP Committee hearing about black lung benefits.

This was a hearing called to address the many issues raised about the legal system and our medical system by Chris Hamby’s amazing, Pulitzer Prize-winning series about the way the coal industry and its lawyers and doctors work to keep miners from getting black lung benefits. We had a story on the hearing here, quoting retired coal miner Robert Bailey from Princeton, W.Va (shown in the photo above).:

Living with black lung is thinking about every breath you take. Policies and laws need to be changed to give hope and life to those who don’t have time for stall tactics.

But it’s worth checking out Chris’s piece, which reports:

In an extraordinary rebuke to a doctor at one of America’s top hospitals, the U.S. Department of Labor has informed about 1,100 coal miners that their claims for black lung benefits may have been wrongly denied because of the actions of a powerful physician at the Johns Hopkins Medical Institutions, the department’s deputy secretary told senators Tuesday.

That doctor, Paul S. Wheeler, systematically found that miners did not have black lung when, in fact, many of them did. Medical opinions by the doctor should be assumed not to be credible, senators and affected miners were told.

What I couldn’t stop thinking about was why West Virginia’s political discourse doesn’t focus more on these black lung issues. Why aren’t Republicans here constantly asked why their party blocked for many, many months the Obama administration’s effort to enact new rules that would help eliminate black lung disease? Why don’t Democratic candidates like Natalie Tennant talk almost constantly about this terrible important issue, and the disgraceful way our nation has handled it?

Black lung surfaced briefly as an issue in the Republican effort to unseat Rep. Nick J. Rahall. But gosh, it’s just not in the forefront of what Democrats campaign about.  Wouldn’t  stopping black lung and fixing the benefits program be both good politics and have the odd benefit of being the right thing to do? If political leaders wanted to actually talk about the issue, they just have to borrow these words from Sen. Jay Rockefeller:

One of the most troubling aspects of the public debate over Black Lung disease is that many people believe it is a thing of the past – that somehow coal miners are no longer at-risk of developing the disease. The sad reality, however, is that the disease is very real and on the rise in coal mining communities throughout the country.

In the 1970s, shortly after Congress passed the first major legislation to combat Black Lung disease, 6.5 percent of all active coal miners had the disease. By the 1990s, that number had dropped to 2.1 percent. But, in the 2000s, we saw the prevalence of Black Lung disease increase to 3.2 percent – the first increase of the disease in three decades. Between 1999 and 2009, almost every single region in the country saw an increase in the percent of miners suffering from Black Lung disease. Some areas in West Virginia, Pennsylvania, Virginia, and Kentucky are seeing rates as high as 9.0, 10.0, and even 13.2 percent.

Sadly, research is showing that younger miners are now developing more progressive forms of the disease earlier in their careers. These findings were confirmed as part of the investigation into the Upper Big Branch disaster, which took the lives of 29 coal miners in West Virginia. Autopsies of 24 victims revealed that 17 of them, or 71 percent, also suffered from Black Lung disease. Even more alarming is that five of those victims with Black Lung disease had been working for less than 10 years underground, including one miner who was only 25 years old. So, while the explosion that took their lives did so almost instantaneously, another disaster, hidden from view, was taking their lives more slowly – but just as tragically.

This rise in Black Lung disease is unacceptable. Congress and the Administration have a solemn obligation to provide coal miners with every protection from this debilitating, incurable, but preventable disease. That is why I was proud to join Secretary of Labor Thomas Perez in West Virginia in April to announce the finalization of new rules that – for the first time in 40 years – will lower coal miners’ exposure to the respirable dust that causes Black Lung disease. The Administration should be commended for taking this major step forward. With strong enforcement and implementation, these rules will undoubtedly save lives and improve the quality of life for current and future generations of coal miners.

Oh, and not for nothing … but there was another congressional hearing going on today. It was supposed to be about how to streamline the process of environmental regulation, but it included this important testimony from Appalachian Voices, talking about another coal country health crisis:

What is so notable about the science linking mountaintop removal to elevated death rates and poor health outcomes in nearby communities is not the strength of any individual study, but rather the enormous quantity of data from independent sources that all point toward dramatic increases in rates of disease and decreases in life expectancy and physical well-being.

Despite this overwhelming amount of peer-reviewed scientific data, however, regulatory agencies in Appalachian states have so far refused to consider these new studies in assessing the impact that permitting new mountaintop removal mines could have on the health of nearby residents.

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Here’s a statement just issued by United Mine Workers of America:

After extensive review, the United Mine Workers of America (UMWA) today announced its qualified support of the Apr. 23, 2014, final rule issued by the Mine Safety and Health Administration (MSHA) regarding controlling respirable dust in coal mines.

This is a step forward in the fight to end black lung,” UMWA International President Cecil E. Roberts said. “While there are many things in this rule we are pleased to see, there are some that we are not. We hope that, as the stakeholders move forward in understanding and implementing this rule, we can get more clarity from MSHA as to how it will actually be applied and enforced in an active working coal mine environment.

Roberts said that the union approves of many parts of the rule, including lowering the standard for respirable dust from 2.0 milligrams (mg) to 1.5 mg per cubic meter (m3) of air. “Our analysis of MSHA sampling over the past several years at underground mines where we represent the workers shows that the dust in the atmosphere on the longwalls at those mines was out of compliance with the 2.0 mg/m3 standard less than five percent of the time,” Roberts said. “That same analysis leads us to believe that the operators of those mines won’t have a very difficult time in meeting the 1.5 mg/m3 standard.

The UMWA also is pleased that dust sampling will be done at a production rate of 80 percent instead of 50 percent. This will force operators to keep their equipment and dust control mechanisms, including ventilation, water sprays and cutting bits operating at maximum efficiency.

Under the new rule, dust samples will be taken over the full shift a miner actually works, where previously the sampling was only done for eight hours even if a miner worked a longer shift. “Most miners today are working 10- or 12-hour shifts, meaning that under the existing rule, we don’t know how much dust a miner is actually exposed to while he or she is working,” Roberts said. “The full shift sample will give us that data.

Along with the real-time reading of dust exposure that will be available to the miner with the deployment of the new continuous personal dust monitor (CPDM), we believe that these provisions will enable miners to be empowered to have more control over their health and safety within the work environment,” Roberts said. “That’s important in any mine, but for those nonunion miners who do not have the protections of a union safety committee at their mine, these provisions could be even more significant.

The union also supports language in the rule that prohibits operators from using “administrative controls” such as respirators; “airstream” helmets, which provide a constant supply of filtered air to a miner via a plastic face shield; or moving miners out of production areas of the mine to meet the 1.5 mg/m3 standard. This means that operators will have to meet the standard through proper environmental controls, such as ventilation and properly maintained equipment.

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cecilsenatehearing2010

Here’s the latest from the United Mine Workers of America and its president, Cecil Roberts:

The UMWA has received multiple inquiries from the media, industry representatives, government officials and mine safety advocates regarding our views of the respirable dust rule issued by the Mine Safety and Health Administration (MSHA) last week. We appreciate that interest, and we recognize our responsibility as the representative of workers in the coal industry to make our position known.

The rule as issued by MSHA is 991 pages long. We are reading all of them, and we encourage those who want to fully understand what the rule does and does not do to read the full text as well. We are engaging in vigorous discussions and data research at our offices in an effort to completely understand how the many parts of this rule will be applied in the workplace.

All too frequently in these situations, what’s written on paper turns out to be different from what we expected once it’s applied in the real world conditions of an active coal mine. We believe it is incumbent upon us, as the representative of miners, to give our members the best and most complete information we can about what this rule will actually mean for them, and we intend to do that prior to making a public statement about it.

 

MSHA set to announce new coal dust rule

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Here’s the media advisory that went out yesterday from the U.S. Department of Labor:

The U.S. Department of Labor’s Mine Safety and Health Administration will announce a major step forward in the department’s End Black Lung – Act Now! initiative on Wednesday, April 23, at the National Institute for Occupational Safety and Health facility in Morgantown, W.Va.  U.S. Secretary of Labor Thomas E. Perez, Assistant Secretary of Labor for Mine Safety and Health Joseph A. Main, NIOSH Director John Howard and others will discuss the release of a final rule to lower miners’ exposure to respirable coal mine dust in all underground and surface coal mines.

The website for the White House Office of Management and Budget indicates that officials there finally approved the rule — after eight months of review — on Monday.  MSHA had proposed the rule back in October 2010, but miners’ health advocates have been calling for the tightening of the coal dust rule for many years — and action on the issued had been stalled for years by administrations from both political parties.

Obama takes ‘good first step’ on black lung reform

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Here’s the latest black lung news, out last night from Chris Hamby and the Center for Public Integrity:

Coal miners sick with black lung disease should receive higher-quality medical reports and have a better chance to win benefits cases following a series of reforms announced Monday by the U.S. Department of Labor.

The initiatives, effective immediately, represent an attempt by the Labor Department to create a more level playing field for coal miners navigating a byzantine federal benefits system that often favors coal companies and the lawyers and doctors they enlist.

The Department of Labor moves come after the center’s remarkable reporting about the hurdles disabled coal miners must face in trying to seek black lung benefits (see here, here and here).  You can read more about the labor department’s actions here and here. Chris Hamby explained in his story:

The new measures include a pilot program that would provide some miners with an additional medical report, instructions to government lawyers across the country to intervene in some appeals and increased training for doctors and government officials.

“We really think this is going to create more balance and fairness,” said Gary Steinberg, the acting director of the Office of Workers’ Compensation Programs, which oversees the black lung benefits program. “Our goal is that it will result in an increase in the number of awards because of an increased quality in the reports and quality in the decisions.”

Sen. Jay Rockefeller, D-W.Va., called the Labor Department’s initiatives “a step in the right direction,” and Rep. George Miller, D-Calif., said they were “a good first step toward leveling the playing field.” Both noted, however, that only some miners qualify for them and called for further action.

It’s worth remembering that the labor department rules aimed at ending black lung disease, proposed by the U.S. Mine Safety and Health Administration,  are still under review by the White House Office of Management (an agency run by West Virginia native Syliva Mathews Burwell). The MSHA proposal has been stuck at OMB since August.

4th Circuit rules against miner in black lung case

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Longtime miner Gary Fox underground with the roof bolting machine he operated, driving rods into the mine’s ceiling to prevent a cave-in. Courtesy of Mary Fox and the Center for Public Integrity.

Just out today is a ruling by the 4th U.S. Circuit Court of Appeals in the case of Gary Fox, a deceased coal miner whose black lung benefits claim has been at the heart of a controversy over the handling of black lung cases by the Charleston law firm Jackson Kelly.  Readers will recall the comprehensive stories by Chris Hamby and the Center for Public Integrity, which we’ve discussed on this blog before.

In its decision today, the 4th Circuit concluded that the conduct of Elk Run Coal Co. in the case, “while hardly admirable, did not, under clear Supreme Court and circuit precedent, demonstrate the commission of a fraud upon the court.” We’ve previously summarized the key dispute in the case this way:

Fox’s widow, Mary, is pursuing the case because her husband was denied black lung benefits after Jackson Kelley lawyers withheld reports from two pathologists who had concluded Fox did indeed have black lung.

The 4th Circuit said today:

While Elk Run’s conduct over the course of this litigation warrants nothing approaching judicial approbation, we are unable to say that it rose to the level of fraud on the court.

UPDATED: Al Karlin, a lawyer for Mary Fox, had this to say about the 4th Circuit’s ruling:

Although we are disappointed that the Court did not conclude that Jackson Kelly’s conduct rose to the level of ‘fraud upon the court,’ a heightened legal standard for reopening older cases, we note that the Court did not endorse the firm’s conduct nor did it consider or resolve the more important question as to whether the firm committed common law fraud. We are surprised that the Court failed to appreciate the difficulty that Mr. Fox and so many other miners have in getting competent counsel in federal black lung claims to protect them from litigation tactics that undermine the pursuit of the truth.

UPDATED 2:  Here’s a statement issued by Jackson Kelly:

Jackson Kelly is pleased that the Fourth Circuit Court of Appeals has ruled in favor of our client, and held that our client had no obligation to turn over reports from non-testifying consultants. As the Court noted, under our legal system, parties on all sides of a dispute are entitled to effective representation. As the Court acknowledged, the federal black lung program is intended to be adversarial. We have always believed that the actions of our attorneys were lawful. For nearly 200 years, Jackson Kelly has represented clients across West Virginia and the nation, and we have always been known as strong and able advocates and we believe our conduct in this case was consistent with our duty to represent our client.

Read the decision below:

Rep. Miller seeks IG probe of black lung cases

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Here’s the news just in from Rep. George Miller, D-Calif., and ranking Democrat on the House Labor Committee:

Today, two members of Congress asked the Department of Labor’s Inspector General to investigate claims surfaced in news reports from the Center for Public Integrity and ABC News that some doctors and attorneys working on behalf of the coal industry have engaged in misconduct that has resulted in coal miners being improperly denied health-related benefits and compensation under the federal Black Lung Benefits Program.

“According to a year-long investigation of the Black Lung Benefits Program by the Center for Public Integrity and ABC News, doctors and lawyers have allegedly used medically and ethically questionable tactics to defeat the benefits claims of miners sick and dying of black lung, even as disease rates are on the rise and an increasing number of miners are turning to a system that was supposed to help alleviate their suffering,” wrote Reps. George Miller (D-Calif.) and Joe Courtney (D-Conn.). “We look forward to learning the results of your investigation, as we work with my colleagues to assess legislative reforms to prevent the benefit claims process from being gamed by coal companies, their lawyers and their doctors, and to ensure that those who have been improperly denied benefits will have another opportunity at securing fair treatment.”

The Center for Public Integrity and ABC News investigation revealed how dubious medical opinions from doctors at Johns Hopkins Hospital have helped coal companies thwart efforts by ailing mine workers to receive disability benefits. The report also suggested a pattern and practice by attorneys at the Jackson Kelly law firm, which compromised the integrity of the black lung benefits program and potentially tainted numerous decisions adversely affecting coal miners and their survivors.

You can read the Center’s stories online here, and here’s a link to the letter to the Inspector General.

Hopkins suspends controversial black lung program

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Hopkins Hospital, photo via Wikimedia Commons.

In case you missed the news that came out Friday evening, here’s what Chris Hamby at the Center for Public Integrity was reporting:

Johns Hopkins Medicine has suspended its black lung program pending a review in response to a Center for Public Integrity-ABC News investigation revealing how medical opinions from doctors at the prestigious hospital have helped coal companies thwart efforts by ailing mine workers to receive disability benefits.

“Following the news report we are initiating a review of the [black lung X-ray reading] service,” said a statement issued late Friday by Johns Hopkins Medicine. “Until the review is completed, we are suspending the program.”

Hopkins’ decision came as United States senators from coal country announced they have begun working on new legislation to address “troubling concerns” raised in this week’s reports.

“This new report raises a number of troubling concerns,” said a statement from U.S. Sen. Robert P. Casey (D-Pa.) Friday. “It is imperative that miners receive fair treatment and are not victimized at any point in the system.  I am working closely with Senator (Jay) Rockefeller to develop new legislation to address this problem.”

Rockefeller called the treatment of coal miners a “national disgrace” in an interview with ABC News.

You can read the entire Johns Hopkins statement here. The initial stories by the Center for Public Integrity and ABC New are here and here.

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Chris Hamby and the Center for Public Integrity have already given us a couple of remarkable stories this week (see here and here) about black lung disease, and they’ve done so again today.  Part 3 of their series, Breathless and Burdened, is headlined, As experts recognize new form of black lung, coal industry follows familiar pattern of denial.  It starts off with the story of Ted Latusek:

For almost two decades, his breathing has been so bad he’s been considered totally disabled. Even his former employer, the coal giant Consol Energy, does not dispute those points.

Nineteen years after he first filed for federal black lung benefits, however, his case remains unresolved. What’s really causing his impairment, doctors testifying for Consol contend, is a completely different and unrelated disease. To win his case, the former miner must show that his disability is caused by black lung.

Though parts of his lungs show the dark nodules typical of the classic form of black lung, all doctors agree that his biggest problem is elsewhere, in the parts of his lungs that show severe scarring with a different pattern.

His case file, spread in piles, covers a conference table, but all of the medical reports, depositions, hearings, briefs and rulings center on one question: What caused the abnormal scarring that has consumed large portions of his lungs?

The fight over the answer to that question goes to the heart of the newest battle in a longstanding war between companies and miners. Latusek’s legal tussle is the signal case in the latest effort by the coal industry to deny emerging scientific evidence and contain its liabilities, a strategy that has played out repeatedly over more than a century and locked multitudes of miners out of the benefits system … 

The story continues:

Since Latusek first filed his claim in 1994, research increasingly has shown that coal and silica — the toxic mineral in much of the rock in mines — can cause the pattern of scarring he has. Government researchers at the National Institute for Occupational Safety and Health (NIOSH) and the National Institutes of Health (NIH), as well as other independent doctors, have linked the pattern to coal mining.

“It’s certainly related to their work,” said David Weissman, head of NIOSH’s division of respiratory disease studies. “We’re confident of that.”

Yet, while other variants of black lung are defined explicitly in Labor Department regulations, Latusek’s form is not, and doctors paid by the coal industry continue to testify that there is no evidence of any connection between mining and this form of disease. This leaves the complex medical issue to be argued case by case in the benefits system, which is often ill-equipped to address emerging science and typically favors coal companies and the well-paid consulting doctors they enlist.

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blacklungminer2

Part 2 of the Center for Public Integrity’s remarkable expose on the black lung benefits process, “Breathless and Burdened,” is out this morning. And as the headline explains, it focuses on the medical unit at Johns Hopkins University which — in its work for coal companies — rarely finds black lung disease, helping the industry to defeat miners’ claims for federal benefits.

Investigative reporter Chris Hamby writes:

The Johns Hopkins University often receives attention for its medical discoveries and well-regarded school of public health, and its hospital recently was ranked the nation’s best by U.S. News and World Report.

What has remained in the shadows is the work of a small unit of radiologists who are professors at the medical school and physicians at the hospital. For 40 years, these doctors have been perhaps the most sought-after and prolific readers of chest films on behalf of coal companies seeking to defeat miners’ claims.

His story continues:

Their reports — seemingly ubiquitous and almost unwaveringly negative for black lung — have appeared in the cases of thousands of miners, and the doctors’ credentials, combined with the prestigious Johns Hopkins imprimatur, carry great weight. Their opinions often negate or outweigh whatever positive interpretations a miner can produce.

For the credibility that comes with these readings, which the doctors perform as part of their official duties at Johns Hopkins, coal companies are willing to pay a premium. For an X-ray reading, the university charges up to 10 times the rate miners typically pay their physicians.

Yet as part of its year-long investigation, the Center for Public Integrity said it found “strong evidence” that the deference the system gives to Johns Hopkins doctors “has contributed to unjust denials of miners’ claims.” Some of their evidence, especially regarding the top Hopkins’ doctor, 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.

— 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.

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Gary Fox

Longtime miner Gary Fox underground with the roof bolting machine he operated, driving rods into the mine’s ceiling to prevent a cave-in. Courtesy of Mary Fox and the Center for Public Integrity.

Today, lawyers for the family of deceased coal miner Gary Fox will go before the 4th U.S. Circuit Court of Appeals in Richmond, Va., to argue a key case over whether the law firm of Jackson Kelly committed “fraud on the court” in its efforts to fight Fox’s claims for federal benefits for black lung, the disease that killed him and still kills far too many Appalachian coal miners.

In a story published online today by the Center for Public Integrity, investigative reporter Chris Hamby explains what’s at the heart of this complex case:

Underlying the case is a core question: How can the system ensure that coal companies have a chance to defend themselves while also preventing miners — many of them sick, poor and trying to navigate a legal maze without a lawyer — from being crushed by the other side’s superior resources?

The Labor Department tried to narrow the resource disparity in 2000 by issuing regulations limiting the amount of evidence both sides could introduce. This has stopped companies from overwhelming miners with dozens of interpretations of medical evidence.

But it has not addressed the thorny question raised by the Fox case: Should lawyers be allowed to obtain medical reports from large numbers of experts, submit only the favorable ones and withhold the rest?

But Chris Hamby hasn’t just covered this case. In a second, much more lengthy, well documented, and wonderfully written piece, Chris has examined the way Jackson Kelly — the coal industry’s “go-to” law firm, he calls them — handles black lung cases for coal companies.  His piece describes how Jackson Kelly attorneys, representing Massey Energy’s Elk Run Coal Coal, withheld key evidence in the case: Two pathology reports that confirmed Fox indeed had complicated black lung disease.  Chris explains:

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.

Relying heavily on the pathology report, a judge denied Fox’s claim for benefits in 2001, leaving him few options. He had a family to support, and he needed health insurance because Mary had a chronic illness. He went back to the mine, his health deteriorating. For years, no one but the firm knew of the powerful evidence that he had the severe disease and should get out of the mine’s dusty atmosphere immediately.

And, his story reports:

What happened to Gary Fox was not the result of a rogue attorney or singular circumstances. It was part of a cutthroat approach to fighting miners’ claims that Jackson Kelly has employed to great effect for decades, an investigation by the Center for Public Integrity has found. Some of the firm’s tactics go beyond aggressive advocacy, crossing into unethical behavior, according to current and former judges, lawyers and state disciplinary officials. As a result, sick and dying miners have been denied the modest benefits and affordable medical care that would allow them to survive and support their families.

The role of lawyers in orchestrating sophisticated legal strategies to defeat claims for benefits is just the first chapter in the story of a system in which well-paid specialists thrive as miners struggle, the Center’s yearlong investigation, Breathless and Burdened, found. Coal companies rely on a cadre of doctors with prestigious affiliations, including a unit at the nation’s top-ranked hospital, to trump the opinions of miners’ physicians. Experts for hire continue a century-old tradition: denying scientific evidence that black lung can assume different appearances in different people, locking an entire class of sick miners out of the benefits system.

Jackson Kelly, documents show, over the years has withheld unfavorable evidence and shaped the opinions of its reviewing doctors by providing only what it wanted them to see. Miners, often lacking equally savvy lawyers or even any representation, had virtually no way of knowing this evidence existed, let alone the wherewithal to obtain it.

 

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Patroit Bankruptcy Protests

There’s an interesting piece out from the American Prospect by influential columnist Harold Meyerson that rightly praises the United Mine Workers of America for the success it’s had so far in its campaign for justice for the retirees at Patriot Coal. It starts out like this:

The story of the United Mine Workers of America is the story of the American labor movement as a whole. The Mine Workers were once the single most important union in the United States: the union that broke from a stodgy labor federation in 1935 to devote its resources to organizing the nation’s factories, the union that built such dynamos as the United Auto Workers and the Steelworkers; the union that sunk so much money into Franklin Roosevelt’s 1936 campaign that FDR didn’t raise a peep when striking auto workers occupied General Motors’ Flint, Michigan, factories and didn’t come out until GM had recognized their union; the union that had the strength and cojones to strike during World War II’s strike ban; the union that transformed industrial America. Today, their membership shrunk to perhaps just 10 percent of their peak strength numbers, the Mine Workers, like the labor movement generally, have a past that quite outshines their present. Their retirees outnumber their current members, and they would outnumber them by an even larger margin if coal mining, with its black lung and emphysema, didn’t shorten so many miners’ lives. Clustered in Appalachia, the union, like its industry, sometimes seems to inhabit a land that time forgot.

And yet, for all that the Mine Workers can seem to epitomize yesterday’s news, the union has just waged a brilliant and innovative campaign that has ended in a stunning victory. Last week, the Mine Workers persuaded a company that had gone into bankruptcy, and whose plan to break its union contracts and end its pension and health-care obligations to retirees had been approved by a federal judge, to honor its contracts and pay its retirees after all. This isn’t how bankruptcy proceedings usually end; workers and retirees more commonly finish out of the money. But the Mine Workers—combining the old-time class-war religion of the Appalachian hollows with a new-age campaign on social media—came through for both their members and their retirees.

The piece makes some excellent points regarding the UMWA’s strategy:

Its retirees deluged the New York Court with petitions to change the venue to a city with at least some presence of actual workers and retirees, and the court concurred, transferring the case to St. Louis. Miners and retirees rallied and marched in St. Louis (where Peabody is headquartered), in West Virginia and in Kentucky, demanding that Peabody assume the obligations it had sloughed off. Despite their entreaties, a federal bankruptcy judge in St. Louis granted Patriot’s bankruptcy petition and declined to compel Peabody to re-assume its responsibilities.

The Mine Workers refused to admit defeat. They mounted steadily larger demonstrations in the coal-mining regions where Peabody was a major employer, in which the indignant testimony of visibly and audibly short-of-breath retirees proved as irresistible to local television news crews as it was a complete nightmare for Peabody. The miners reached outside their ranks—something that John L. Lewis, their legendary leader from the 1920s through the 1950s, would never have considered—to enlist such civil rights groups as the NAACP as allies and to persuade sympathetic clergy to preach the gospel against Peabody from pulpits across the Bible belt. They worked the media, turning up both sympathetic retirees and academic studies to help reporters dramatize and elucidate a story of Dickensian moral clarity. They reached out to campuses and established a Facebook page that up to 100,000 people visited daily.

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Rockefeller on coal industry: ‘They have no ideas’

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Yesterday, I spent part of the afternoon down in Bluefield, listening as Sen. Jay Rockefeller talked with black lung victims, miners’ health advocates and public health professionals about the black lung epidemic across our nation’s coalfields. It’s clear that Sen. Rockefeller is going to spend much of his remaining time in the Senate pushing on this issue and several other key matters relating to coal miner health, safety and financial security. Here’s part of our Gazette story on yesterday’s event:

Sen. Jay Rockefeller, D-W.Va., on Thursday gathered black lung victims and miners’ health advocates to continue a push for the Obama administration to finalize a rule aimed at ending the deadly diseases.

Rockefeller, D-W.Va., said he would rather see the U.S. Mine Safety and Health Administration finalize the rule on its own, without legislation that would face strong opposition from the mining industry.

“There is such a power of the coal industry almost totally over one party in Congress and some in my own party that makes change through legislation very difficult,” Rockefeller told reporters prior to a black lung “roundtable” discussion in Bluefield.

Rockefeller said that on Wednesday night he called the White House Office of Management and Budget to urge officials there to expedite their review of a draft final rule MSHA filed with OMB two weeks ago.

This morning’s Daily Mail also had a nice front-page spread, with a story by reporter Zack Harold, leading with this important thought from Sen. Rockefeller: If coal companies cannot afford to protect miners from black lung disease, Sen. Jay Rockefeller says they should go out of business.

Both during a short session with reporters prior to the event and during the roundtable discussion, Sen. Rockefeller harkened back to his previous criticisms (see here and here) of how the coal industry and some of its political friends have this single-minded focus on attacking the Obama administration. As we explained in today’s story:

Several times, Rockefeller also addressed questions about the campaign by coal industry publicists and some regional political leaders to paint the Obama administration’s U.S. Environmental Protection Agency policies as a “war on coal.”

“The president hasn’t waged a ‘war on coal’,” Rockefeller said. “Coal companies have made war on their own future.”

Rockefeller complained the industry has done little to help foster compromise on dealing with climate change or to push efforts to find cost-effective ways to capture greenhouse emissions from coal-fired power plants.

“All they can do is attack EPA and attack the president,” Rockefeller said. “That’s their whole deal. They suggest nothing. They have no ideas.”

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andybarrIt was a potentially huge week for the many folks who have fought for years to try to end the deadly disease known as black lung, with the U.S. Mine Safety and Health Administration moving forward with its new rules by sending them over for White House approval.

So it’s too bad it had to end with some pretty silly remarks from one of Kentucky’s congressmen. Here’s what the Lexington paper reported today:

Republican U.S. Rep. Andy Barr of Lexington said many members of Congress have questions about the rules, including whether they would add burden and cost on coal companies that would far outweigh any benefit to miners. If companies cut employment because of regulatory costs, it does nothing to advance the cause of workers’ health, Barr said.

“Worker safety is a top priority, but not at the cost of putting that family in a very precarious financial situation,” Barr said.

What? Worker safety is a top priority unless protecting miners from dying a terrible death from black lung costs too much? In his defense, the story went on to say:

No one should get black lung, Barr said, but regulators need to strike the right balance.

“Let’s make sure we’re not so overzealous that we put these people out of work,” he said of miners.

I guess the question is … how many Kentucky coal miners should have to die from black lung? What’s an acceptable number that amounts to “balance”?

It’s always fascinating how political leaders who profess to care so much about protecting coal miner jobs seem much less interested in protecting their health and their lives.

And not for nothing, here’s what we reported at the time — way back in October 2010 — when the Obama administration first proposed this rule:

MSHA estimated that the compliance costs for industry at between $72.4 million and $93.2 million the first year and between $40 million and $44.5 million each year after that.

Agency officials put the annual benefits – from thousands of reduced illnesses and deaths – far higher: between $99 million and $197 million per year, depending on how the figure is calculated.

MSHA sends black lung rules to White House

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There’s finally some action today by the Department of Labor’s Mine Safety and Health Administration regarding its long-delayed rules aimed at ending black lung disease.

This notice on the Office of Management and Budget website indicates that MSHA sent its version of a final rule over to the White House yesterday … Now the question is how long will it take OMB — which is now run by West Virginia native Syliva Mathews Burwell — to move on this important rule?

Recall that MSHA first proposed this rule way back in October 2010. More recently, U.S. Sen. Jay Rockefeller, D-W.Va., has been pressing the administration to act.

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Here’s the statement just issued by the United Mine Workers of America and union President Cecil Roberts:

In the wake of a strongly-worded letter sent by U.S. Sen. Jay Rockefeller (D-W. Va.) to President Barack Obama regarding the lack of progress on important mine safety and health regulations, the United Mine Workers of America (UMWA) expressed its support for the Senator’s viewpoints.

“I agree wholeheartedly with the letter that Sen. Jay Rockefeller (D-W.Va.) today sent to President Obama about the lack of progress by his administration on critical health and safety initiatives for American coal miners,” UMWA International President Cecil E. Roberts said. 

“As Sen. Rockefeller points out, the terrible scourge of black lung is once again on the rise,” Roberts said. “We know what causes it, and we know how to prevent it. The delay in implementing limits to miners’s exposure to respirable coal dust puts more and more miners at risk every day.”

The statement continued:

The UMWA has been consistently and frequently in contact with the Mine Safety and Health Administration (MSHA) about the delay in the dust rule over the past several months. “We have discussed what we believe is the right language to protect miners’ health with the agency,” said UMWA International Secretary Treasurer Dan Kane. “We look forward to a rule that reflects those parameters coming soon from MSHA.”

Promised rules to require the installation of proximity detection devices on mining equipment also remain in limbo. “Far too many miners are killed each year when they are crushed by equipment underground,” Roberts said. “The technology exists to make those deaths preventable, and we join Sen. Rockefeller in urging the administration to get moving, and take action to save miners’ lives.”

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Over the weekend, the Lexington Herald-Leader remind us of the continuing worker health crisis in the Appalachian coalfields, with a story headlined, After decades of decline, black lung on the rise in Eastern Kentucky. They reported:

Congress intended to eradicate the disease known as black lung with a landmark 1969 law that limited underground coal miners’ exposure to dust.

Roger Cook can tell you that didn’t happen, but only if he pauses mid-sentence to take a labored breath.

Cook, 57, has black lung even though he started his 32 years as an underground miner in 1978, well after the new standards were put in place. He is among a growing number of Eastern Kentucky miners afflicted in recent years with black lung, reversing a decades-long decline of the torturous, incurable disease.

The Letcher County man had to quit the mining job he loved in April 2010 when he was diagnosed with black lung, which scars the lungs, impairs breathing and often leads to premature death.

Cook now relies on an oxygen tank to help him breathe 24 hours a day, and he still gets short of breath even while sitting. He once was an avid hunter and fisherman, but about the best he can do these days is pull close in his pickup truck to watch his grandchildren fish.

“I won’t last that long if I don’t get a transplant,” Cook said.

Their story explained:

Black lung has been the underlying or contributing cause of death of more than 76,000 miners since 1968, according to figures from the National Institute for Occupational Safety and Health. That total does not include deaths from silicosis, which is caused by breathing dust from rocks such as sandstone.

Before the 1969 mine safety act, more than 40 percent of longtime miners in some regions of the United States got black lung, according to NIOSH data. Overall, 11.2 percent of underground coal miners screened for black lung from 1970 to 1974 had the disease.

Prevalence of black lung declined steadily for several decades, dropping to 2 percent in screenings conducted from 1995 to 1999, NIOSH said in a May 2011 report. Then, mysteriously, black lung rebounded. Screenings in 2005 and 2006 found the disease in 3.3 percent of surveyed miners.

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