Update, Nov. 20, 2014, 2:30 p.m.: The legislation referenced in this story was introduced today. The full text of the bill can be found here.
For almost four decades, federal law has required coal companies to compensate miners who contract the debilitating and often deadly disease caused by breathing in coal dust. But companies have deployed strategies to avoid paying miners: Doctors working for coal companies have systematically misdiagnosed miners with black lung as having other diseases, and lawyers fighting miners’ claims have withheld evidence that the miners did, in fact, have black lung. These schemes were exposed last year in a major investigation by the Center for Public Integrity, partnering in part with ABC News.
The legislation, sponsored by Sens. Robert Casey, a Democrat from Pennsylvania, and Jay Rockefeller, a Democrat from West Virginia, aims to put a stop to those strategies. “To say this is shameful is an understatement,” Casey said during a conference call Thursday, referencing the current state of the black lung benefits system.
The bill’s prospects for passage this year look dim because toxic partisan battles have made it hard to pass almost any legislation. Still, the bill marks a major milestone in the fight of mine workers to secure much-needed benefits. New legislation is particularly urgent, its sponsors say, because new evidence indicates that rates of the severe form of black lung have surged back to the highest levels since the 1970s, and more miners are seeking benefits. If changes are not made, the bill says, miners “with meritorious claims would not receive benefits.”
Casey acknowledged the challenging political climate and said he planned to push the bill in November. “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.”
The first installment of the CPI series focused on cases in which coal company lawyers had withheld evidence that showed miners had severe black lung, leading to wrongful denials of benefits. The legislation would require both sides to disclose all medical evidence developed during the claim. It also 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.
The second installment of the CPI series, reported in conjunction with ABC News, revealed that a unit of radiologists at the Johns Hopkins Medical Institutions had long been the go-to place for coal companies seeking negative chest X-ray readings to help defeat a benefits claim. The leader of the unit, Dr. Paul Wheeler, had never found a single case of severe black lung in more than 1,500 cases dating to 2000, the investigation found. The legislation does not mention Wheeler or Johns Hopkins by name, but it references “a certain physician employed at a prominent medical center.”
The bill seeks to root out systematic bias in X-ray readings in multiple ways. It would establish a pilot program that would allow claimants, coal companies, or Labor Department officials to request a review of films by an expert panel convened by the National Institute for Occupational Safety and Health, the federal agency that certifies doctors to read X-rays for diseases such as black lung.
Doctors on the panel would receive a series of X-rays. They wouldn’t know where each one originated, and the series would include films known to be either positive or negative. The agency would monitor performance and have the authority to remove doctors who were consistently wrong.
The bill also would allow miners to reopen their cases if they had been denied because of the readings of a doctor who subsequently was discredited.
Other provisions seek to level the playing field in a system that is often tipped in favor of coal companies, which typically are represented by specialized lawyers and can afford well-credentialed doctors. Claimants, by contrast, often can’t find a lawyer and have few resources to consult an array of top physicians.
To address these problems, the bill allows claimants’ attorneys to collect fees, paid by the government and capped at $4,500, before the case is finalized. Currently, lawyers must wait until the case is finished, then petition for payment. This delay, combined with the low probability of victory and the drawn-out nature of many cases, has caused attorneys to flee the system, leaving miners to fend for themselves in many instances.
The bill also extends a pilot program established this year by the Labor Department that would provide miners with better quality medical evidence. It would give doctors paid by the Labor Department a chance to review and rebut evidence developed by the coal company.
Other provisions would mandate a Government Accountability Office study of any further challenges miners face and would require the Labor Department to devise a strategy to reduce the current backlog of cases pending before administrative law judges.
Chris Hamby, a former reporter with the Center for Public Integrity, now works for BuzzFeed.
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