Out of Breath: New Hope for Coal Miners Seeking Black Lung Benefits

Bulletin warns against relying on Johns Hopkins expert.

June 4, 2014, 6:09 PM

June 4, 2014— -- Citing an investigative report by ABC News and the Center for Public Integrity, the U.S. Department of Labor has ordered officials handling black lung claims from mine workers to stop relying on the medical opinions of a leading Johns Hopkins doctor whose work for coal companies helped lead to benefits being denied to thousands of miners over the last two decades.

The Labor Department's senior attorney told ABC News the agency is now preparing to notify every miner whose benefits were denied based in part on the doctor's X-ray readings that they should consider reapplying for those benefits.

"This sends a signal that the Department of Labor hasn't sent in a long time," said Sen. Robert Casey, D-Penn. "That they're not going to tolerate a system that's rigged."


INTERACTIVE: The Untold Story of Big Money, Black Lung and Doctors for the Coal Companies

The Labor Department action comes in response to a joint, year-long investigation by ABC News and the Center for Public Integrity that found the head of the Hopkins black lung program, Dr. Paul S. Wheeler, had not reported a single instance of severe black lung in the more than 1,500 claims that the news outlets reviewed going back to the year 2000.

Labor department officials said they were unaware of Wheeler's record until the ABC News report was broadcast.

"It was shocking," said Patricia Smith, the Labor Department solicitor, in an interview to be broadcast tonight on "Nightline".

In a bulletin sent this week, the Labor Department's district directors were instructed to "(1) take notice of this reporting and (2) not credit Dr. Wheeler's negative readings... in the absence of persuasive evidence" challenging the conclusions of the news organizations.

"My judgment of his credibility is that unless someone can convince us otherwise, that anyone who has done that many readings and never found black lung isn't probably credible," Smith said.

In court testimony in 2009, Wheeler said the last time he recalled finding a case of severe black lung, a finding that would automatically qualify a miner for benefits under a special federal program, was in "the 1970's or the early 80's."

Hopkins suspended Wheeler's black lung unit a few days after the ABC News/CPI report was broadcast and posted online.

Hopkins said it would conduct its own internal investigation, which a spokesperson said remains ongoing.

"We take these allegations very seriously and are still conducting the investigation into the [black lung] program," Hopkins spokeswoman Kim Hoppe said in an email. "While our investigation is ongoing, nobody at Hopkins -- including Dr. Wheeler -- is performing" black lung X-ray readings.

Reached by phone Tuesday evening, Wheeler said he hopes to be cleared by the internal Hopkins investigation -- which he said is being conducted by the Washington, D.C., law firm Patton Boggs. "The hospital still believes in my approach," he said.

Wheeler told ABC News he is unmoved by the Labor Department bulletin. "They're not doctors," he said. "If they were from qualified medical institutions, I would be very unhappy."

Wheeler's readings and others like it had become key component of the legal effort by coal companies to fight mine workers as they sought to collect the roughly $1,000-a-month benefit intended to compensate them if they contracted the deadly lung disease during a career of hard work in underground shafts.

Wheeler said during a lengthy interview with ABC News last fall that he could not conclude the coal miners had black lung without first seeing a biopsy -- a step not required by the government program that provides financial support to coal miners who have fallen ill with the deadly disease. He said other maladies were as likely, or more likely, to cause lung damage that could be mistaken as black lung.

"That's my opinion, and I have a perfect right to my opinion," he said.

For his work, coal companies paid Hopkins $750 for each X-ray he reads for black lung, about 10 times the amount miners typically pay their doctors.

One leading expert in black lung, Dr. Jack Parker of West Virginia University, called Wheeler's X-ray readings "intellectually dishonest."

This week's move by the Labor Department came just hours before a scheduled ABC News interview about several new cases in which coal workers saw their applications for black lung benefits turned down based in part on Wheeler X-ray readings that had been submitted prior to the ABC News report.

Among them was the case of Gerald "Wayne" Cordle, who spent 26 years in the mines but in recent years began feeling short of breath when he would mow the lawn or climb stairs. Each year, he said, it continued to get worse.

It was only after his doctor diagnosed him with black lung that he applied for benefits that miners are entitled to receive if they contract a severe form of the deadly lung disease.

In January, two months after the ABC News/CPI report, the Labor Department rejected Cordle's claim citing, in part, Wheeler's conclusion that his X-ray did not show black lung.

"Well it was really a letdown, a big letdown," Cordle said, "because I felt like I was entitled to it by all indications."

"The reports I was getting on my X-rays said I had complicated black lung, and then they come up with one x-ray [from Dr. Wheeler], and the Labor Board rules in their favor," he said.

Cordle's lawyer, Joseph Wolfe, filed an appeal citing the news reports about Wheeler and the Hopkins black lung program. In the appeal, he noted that Wheeler's track record as documented in the news reports "diminishes the probative value of his readings in this case."

"What I noticed was that the Department of Labor hadn't connected the dots," Wolfe said. "They gave him equal weight [to other doctors] when he's been discredited - even Johns Hopkins, which is the number one hospital in America, has dropped their program."

On May 29, Casey and U.S. Rep. George Miller, D-Calif., wrote a letter to Labor Secretary Tom Perez asking why Hopkins X-rays were continuing to be used to deny coal miner black lung claims. Moreover, the letter asked the department "to assess, based on the new information presented in the investigative report, whether it has the authority to review, and where appropriate, reopen cases where claimants may have been wrongfully denied black lung benefits because the Department was misled by tainted medical evidence."

"To the extent it is permissible, I am sure you would agree that the claims of these miners and their survivors deserve a second look," the letter says.

Smith said the Labor Department began work on a strategy soon after the news report aired to help resolve what she said was recognized as an imbalance in the process of evaluating black lung claims by coal miners.

"We sat down among ourselves here in the department and we tried to think of ways to improve the system," said Smith, who is the senior Labor Department lawyer.

Now, Cordle may be one of the first beneficiaries of the Labor Department's new approach.

Smith said the department was aware of Cordle's case, along with several others, which she said would likely be re-examined.

Smith said the department has also initiated two pilot programs aimed at giving miners a second look at medical evidence that was being used against them, and has drafted new regulations aimed at requiring coal company lawyers to turn over all medical evidence they gather -- even when that evidence proves the coal miner has a severe case of black lung disease. Those are now under review.

Congressman Miller, who is the ranking Democrat on the committee that oversees labor issues, told ABC News he believes there is more work to be done.

"The coal mining company's lawyers have unlimited funds to discredit the reading of an X-ray with black lung and the coal miner is very limited because it's coming out of his pocket," Miller said. "So this whole deck is stacked against a miner who may be very seriously ill with black lung and disabled and can't go to work and yet it may take many years to get the first payment to that coal miner."

"This gives new meaning to the phrase justice delayed is justice denied," Casey said. "There is more work to be done."

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