Coal miners’ advocates have long complained that the playing field for winning federal black lung benefits is not level.
A June move by the U.S. Department of Labor gives substance to those complaints.
In a June 4 bulletin, Labor’s Division of Coal Mine Workers’ Compensation instructed its district directors to no longer credit the negative X-ray readings of a doctor who “in more than 1,500 black lung claims, . . . never once, in more than 3,400 X-ray readings, interpreted an X-ray as positive for complicated pneumoconiosis.”
Labor’s move came after an October 2013 investigation by the Center for Public Integrity and ABC News that questioned the credibility of Dr. Paul Wheeler, the lead X-ray reader for the black lung unit at the prestigious Johns Hopkins Medical Institutions.
Johns Hopkins suspended its black lung program and began an internal investigation immediately after the CPI/ABC news report. Wheeler has defended his readings.
Complicated pneumoconiosis is a severe form of black lung, a debilitating disease caused by exposure to excessive levels of dust generated by the mining, transport and processing of coal.
“Such a consistent record of never diagnosing complicated pneumoconiosis and almost never diagnosing simple pneumoconiosis undermines the credibility of his (Wheeler’s) conclusions and renders them less credible than a positive reading,” the bulletin said. “In addition, the reports demonstrate that Dr. Wheeler’s diagnoses have been wrong many times.”
The Labor bulletin instructed district directors to “take notice” of the CPI/ABC News report and to “not credit Dr. Wheeler’s negative readings for pneumoconiosis in the absence of persuasive evidence either challenging the CPI and ABC conclusions or otherwise rehabilitating Dr. Wheeler’s readings.”
“If the responsible operator submits a Wheeler X-ray reading, the district director should inform the parties of this news coverage and its consequences and provide them with copies of the reports and articles and give them a reasonable opportunity to respond,” the bulletin said.
The Department of Labor also announced in June that the agency was preparing to notify every miner whose benefits were denied based in part on Wheeler’s X-ray readings that they should consider reapplying for those benefits.
Wheeler told CPI/ABC News last year that he is more intellectually honest than other doctors because he recognizes the limitations of X-rays and provides potential alternative diagnoses, CPI said in its report.
However, CPI reported, court records show that judges have described Wheeler’s opinion as “disingenuous,” erroneous,” and “antithetical to . . . regulatory policy.”
Five years ago, Administrative Law Judge Stuart A. Levin wrote that Wheeler and two fellow Johns Hopkins specialists “so consistently failed to appreciate the presence of (black lung) on so many occasions that the credibility of their opinions is adversely affected.”
The Wheeler report and subsequent Department of Labor response should have an effect on other medical professionals who read X-rays in black lung cases, a long-time black lung benefits lawyer says.
“It can’t help but have an effect, because they know somebody’s going to be checking (and) re-reading” the X-rays, said Norton’s Joseph Wolfe, who has handled black lung cases for almost all of his 39 years in practice. Wolfe said the Department of Labor is going through its files to track down claimants whose X-rays were read by Wheeler, “and when they see Wheeler in mining the data . . . they send a letter to the complainant,” Wolfe said.
However, Wolfe questioned whether those letters will have enough of an impact, because, he said, a substantial number of claimants are illiterate, elderly or already deceased. And, he said, Labor is not notifying the claimant’s legal council.
And, Wolfe said, “it’s not just him (Wheeler). He’s one of many that always read negative.”
Wolfe said that Johns Hopkins charged coal companies, or “responsible operators,” as they are known in black lung regulations, $750 to read each X-ray — 10 times what most doctors charge, he said. Wolfe also said the use of company-friendly doctors — a practice almost as old as coal mining — is characteristic of the “culture of benefits in Appalachia.”
But, he said, claimants have an advantage because they can seek multiple doctors’ opinions; education and the choice of the right physician are key, Wolfe said.
All Department of Labor black lung claims from the state of Virginia are under the jurisdiction of the Johnstown, Pa. district office. The Johnstown office is one of four that handle black lung claims. The others are in Greensburg, Pa., Charleston, W.Va. and Parkersburg, W.Va. The district director in Johnstown is Douglas Dettling.