William McCool is a 64-year-old former coal miner from Letcher County, Kentucky, with an advanced form of black lung disease. Health experts say the condition is entirely preventable with dust control measures in mines. But today, more miners in Appalachia are being diagnosed with severe black lung than ever before.
“I’ve worked all my life, I’ve seen a lot of coal go down the beltline,” McCool said, pausing to catch his breath between phrases. “Somebody’s made money, but the cheapest thing the company’s got is the worker. Everything else costs them all kinds of money but they can get workers.”
Black lung is a disabling condition caused by the work environment, so miners like McCool are eligible for benefits. The state and federal government both have systems that allow miners to make a claim against their employer for medical expenses and a small stipend. Getting approved can be a long process.
“State black lung compensation took about 2 years, then probably 5 or 6 years I got my federal black lung,” he said.
Some miners have waited over a decade for a decision on federal black lung benefits. Many die before they receive them. State benefits have traditionally been quicker. But black lung attorney Evan Smith at the Appalachian Citizens’ Law Center said that’s been changing.
“The idea was that these federal laws were going to be a national baseline, then many states would grant additional protections to treat their workers better than was the minimum required,” Smith said. “What’s ended up happening, especially in recent years, is states have ended up having a race to the bottom.”
Amid a historic surge in black lung cases in Appalachia, Kentucky lawmakers have approved sweeping changes to the state’s workers’ compensation programs, including changes to the process miners must use to qualify for black lung benefits. Miners and advocates warn the changes may shift the balance in favor of coal companies, and make it harder for those with black lung to get benefits.
Ruling Out Radiologists
Phillip Wheeler is an attorney in Pikeville, Kentucky, who represents clients seeking state black lung benefits. Wheeler has been very critical of Kentucky’s workers’ compensation reform bill, known as House Bill 2.
“On its face the amendments in relation to black lung law may seem very benign,” Wheeler said. “But they have a very nefarious purpose.”
Wheeler and other critics say the bill will make it harder for sick miners to get state benefits by restricting the pool of doctors who can determine a miner’s eligibility for state benefits and tilt the process in favor of coal companies.
“I do believe the coal industry is writing this bill to exclude certain doctors that they don’t like,” Wheeler explained. “Essentially it’ll be limited to approximately five doctors in Kentucky.”
Among those excluded is radiologist James Brandon Crum. He’s the doctor who first alerted federal researchers to the spike in cases of severe black lung, which has since been confirmed as the largest cluster of the disease ever documented.
Clinicians who are certified to read chest X-rays for work-related diseases like black lung are known as B-readers. Among B-readers, radiologists like Crum are generally considered to be the most qualified doctors, since the entirety of their training centers on reading X-rays and other diagnostic images. Yet the Kentucky legislation would bar radiologists from providing diagnoses for state benefits claims. Instead, the legislation requires that B-readers also be certified pulmonologists in order to diagnose patients for the state black lung benefits system.
Crum said the move to push radiologists out of the process caught him by surprise.
“Throughout the United States I know of nowhere where radiologists are taken completely out of the evaluation for potential black lung disease,” he said. “That’s what we’re primarily trained in.”
Dr. Kathleen DePonte was also surprised. DePonte is a board-certified diagnostic radiologist and B reader in Norton, Virginia, with more than 20 years of experience in practice.
“It strikes me as odd that radiologists are excluded in part of the process,” she said. “It is curious to me that the legislators feel that the pulmonologist is more qualified to interpret a chest radiograph than a radiologist is. This is very much what radiologists do.”
William McCool said he thinks the change in eligible doctors would have made his claims process much more difficult.
“It’d be pretty much impossible,” McCool said. “I’ve had lung doctors tell me I don’t have black lung.”
Debate in Frankfort
In debate on the bill, Letcher County Democratic Representative Angie Hatton warned the measure could hurt miners.
“When we’re finding increased amounts of this illness it seems to me that this is when they need us the most,” Hatton said. “Why are we making it tougher for them to prove their illness?”
Adam Koenig is a Republican from Kenton County, and the bill’s lead sponsor. He defended the changes as necessary to fix constitutional issues with the state’s existing system stemming from a 2011 state supreme court decision in a case known as Vision Mining. The court ruled the state system at that time was unconstitutional because miners faced tougher requirements than did people who contracted pneumoconiosis apart from mining.
“No one here is trying to deny anyone who does that work from getting their black lung claims,” Koenig said, “But the fact of the matter is the way we’re doing it now is not constitutional, so we’re trying to fix it.”
Phillip Wheeler, the black lung attorney, said he believes that the newly passed bill is itself unconstitutional. He plans to contest the legislation.
“If it’s anything like we expect it will operate, then you betcha we’re gonna file some challenges,” he said.
The bill’s provisions include a period of up to 6 months for implementation. Miners who file for benefits before then may still be able to use the current system.
NOTE: This story was updated on March 31, 2018, after Kentucky’s governor signed the bill into law.