OUT OF BREATH:

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

An ABC News Brian Ross Investigation with the Center for Public Integrity

http://abcnews.go.com/Blotter/Black_Lung/

For Some Miners, Black Lung Proof Comes Only in Death Oct. 29, 2013

By BRIAN ROSS, MATTHEW MOSK and CHRIS HAMBY

Miner Gary Fox

Courtesy Fox family

For an increasing number of America's coal miners, the sunset on a career spent underground is

being consumed in unrelenting legal battles with coal companies over the cause of their bone-

rattling coughs, shortness of breath and difficulty sleeping.

While thousands of miners have been told by their own doctors they have a disabling form of

black lung disease, coal companies are fighting that diagnosis and the roughly $1,000-a-month in

disability payments they would owe to miners who are proven to be stricken. And the coal

companies are winning.

A year-long investigation by ABC News and the Center for Public Integrity, to air Wednesday

on "World News With Diane Sawyer" and "Nightline," has found a system stacked against coal

miners who must devote their limited resources to simultaneously fight the disease and battle

coal companies over those disability payments. In all too many cases, it took the miner's death,

and the autopsy that followed, to prove what the miner had argued all along that the cause of his deteriorating health was a disease brought on by the dust he breathed while working under

ground.

"It's embarrassing," said U.S. Sen. Jay Rockefeller, D-W.Va. "It's hurtful. To meet and talk with

one of those miners, to go into their home, let them feed you dinner or lunch or whatever and

then just listen to them. You can hardly do anything but just cry with rage, with sadness."

The ABC News investigation identifies the cadre of specialists with prestigious affiliations who

help the coal companies trump the miners in case after case. They are part of a professional corps

of doctors, lawyers and experts that has helped the companies tamp down the vast majority of

black lung awards sought by thousands of mine workers who claimed to suffer from black lung.

Get the Full Story: WATCH 'Black Lung: Out of Breath' on ABC News 'World News With

Diane Sawyer' at 6:30 p.m. EST Wednesday and 'Nightline' at 12:35 a.m. EST Thursday

Luke Popovich, a spokesman for the National Mining Association, the trade association that

represents more than 300 companies and represents their interests before Congress, declined to

comment when reached by phone and would not respond to emailed questions.

A report published today by the Center for Public Integrity investigates another aspect of the

uphill battle that has faced coal miners a battle against one of the nation's most prominent law firms, Jackson Kelly.

Gary Fox, a 25-year coal miner, is featured in the piece. His lawyer, John Cline, has alleged that

the firm withheld key evidence in his case for years, leaving him to return to the coal mines to

earn a living, even as he grew increasingly sick. The head of the black lung law section for

Jackson Kelly declined requests by ABC News and the Center for Public Integrity to be

interviewed.

Fox's autopsy ultimately proved in death what he fought to prove in life that his symptoms were the product of a severe case of black lung disease. Cline called the case a tragic example of

a system out of balance.

"In some cases, that's what happened. We haven't been able to establish benefits until they're

dead," Cline said. "And it's a shame."

Chris Hamby is a reporter for the Center for Public Integrity.

http://abcnews.go.com/Blotter/miners-black-lung-proof-death/story?id=20714445

For Top-Ranked Hospital, Tough Questions About Black Lung and Money Oct. 30, 2013

By BRIAN ROSS, MATTHEW MOSK, CHRIS HAMBY and RANDY KREIDER

Dr. Paul Wheeler of Johns Hopkins examines lung X-rays.

ABC News

Coal companies have paid millions of dollars to Johns Hopkins Medical Institutions over the last

decade for medical opinions that have been used to deny hundreds of ailing mine workers

meager black lung benefits, a yearlong investigation by ABC News and the Center for Public

Integrity found.

"It is a total, national disgrace," said Sen. Jay Rockefeller, D-W.Va., of the findings. "The deck is

stacked in theory and in practice against coal miners, men and women, and it is tragic."

The head of the Hopkins unit that interprets X-rays in black lung cases, Dr. Paul Wheeler, found

not a single case of severe black lung in the more than 1,500 cases decided since 2000 in which

he offered an opinion, a review by ABC News and the Center found. In recent court testimony,

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."

"That's my opinion, and I have a perfect right to my opinion," Wheeler told ABC News in a

lengthy interview in which he defended his track record. For his work, coal companies pay

Hopkins $750 for each X-ray he reads for black lung, about ten times the amount miners

typically pay their doctors.

Hopkins said it has no reason to doubt Wheeler's findings, calling him "an established radiologist

in good standing in his field."

INTERACTIVE: Out of Breath, An ABC News Investigation

But the doctor's findings have disrupted lives across coal country.

"If I had my hands around his neck, I'd have squeezed it," said Michael "Steve" Day, whose

$1,000-a-month black lung benefits were cut off after a judge denied his claim in 2011, relying

in part on Wheeler's testimony in 2009 that Day did not have severe black lung. Day, who spent

more than 30 years working in coal mines, had been diagnosed with black lung by his own

doctors and the Veterans Administration.

Wheeler said he had "no idea" what happens to miners once he issues his opinions. "It would

matter to me if I were wrong, and no one's proven to me that I'm wrong," he said.

But the joint investigation by ABC News and the Center for Public Integrity found that Wheeler

has been wrong or mistaken in more than 100 cases in which autopsies or biopsies later found

black lung after Wheeler had read the X-rays as negative. Such evidence is not available in the

majority of cases.

READ: For Some Miners, Black Lung Proof Comes Only in Death

"The doctor should not be working at Hopkins University or anywhere else," said Sen.

Rockefeller after being told about Wheeler and the investigation's findings.

In his interview with ABC News, Wheeler said he considers black lung to be relatively rare and

expressed concern that some miners might be trying to cheat the companies by falsely claiming

to have black lung.

"That would seem inappropriate to me," he said.

Other experts in black lung disease told ABC News that Wheeler's medical views seem far

outside the mainstream, and several bluntly questioned Wheeler's approach. Dr. Michael Brooks,

a radiologist at the University of Kentucky who sees thousands of black lung cases, said

Wheeler's results were "either a case of someone really having no idea of what they're doing or

being willfully misleading. One of those two possibilities."

Hopkins said in a statement to ABC News that Wheeler and other doctors in the black lung unit

had "confirmed thousands of cases to be compatible" with black lung over the last 40 years.

Hopkins would not say how many of those findings identified the severe form of black lung that

automatically qualifies miners for benefits.

"To our knowledge, no medical or regulatory authority has ever challenged or called into

question any of our diagnoses, conclusions or reports," in black lung cases, said Hopkins in its

statement.

READ: Johns Hopkins Full Statement to ABC News

In recent years, however, there have been repeated instances where administrative judges, federal

officials, and other medical experts familiar with the work of Wheeler's black lung team have

questioned the Hopkins findings.

One judge dedicated an entire section of his ruling in a black lung benefits case to the Johns

Hopkins specialists. Wheeler and two colleagues "so consistently failed to appreciate the

presence of [black lung] on so many occasions that the credibility of their opinions is adversely

affected," Administrative Law Judge Stuart A. Levin wrote in 2009.

"Highly qualified experts can misread X-rays on occasion," Levin wrote. "But this record belies

the notion that the errors by Drs. Wheeler [and two colleagues] were mere oversight."

The ABC News investigation found that doctors like the team from Johns Hopkins are part of a

professional corps of lawyers and experts that have helped coal companies tamp down the

number of black lung awards to mine workers. The most recent figures released by the U.S.

Department of Labor indicate that only 14 percent of miners who claim to be sick are initially

granted benefits. A 2008 study by the Government Accountability Office found that coal

companies appeal about 80 percent of those cases. After appeals, about half of the miners who

initially were awarded benefits or less than 10 percent who initially applied actually receive them.

Luke Popovich, a spokesman for the National Mining Association, declined to comment when

reached by phone and would not respond to emailed questions.

The impact on the lives of coal miners has been dramatic, especially at a time when government

researchers have documented that, after decades of decline, black lung disease is back on the

rise. The incurable ailment, which is the result of damage to the lungs caused by dust particles

churned up during underground mining activity, leaves miners gasping for breath in their living

rooms, even after minimal amounts of exertion. The symptoms often grow progressively worse

over time, and the disease is frequently a killer.

READ: Black Lung Basics, Inside the Miner's Malady

In the late 1960s, the federal government recognized the unique risk of sickness faced by coal

miners and established a special form of workman's compensation to help offset the expense of

treatment and loss of income black lung disease was causing. A government-run trust fund

covers the initial payments if a miner wins the initial benefits claim and the company appeals,

but ultimately, if a miner can prove he was debilitated by his coal mine work, the company

where he last worked is responsible for payments that typically amount to about $1,000-a-month.

For years, coal companies have appealed the majority of black lung claims by their workers,

according to John Cline, a West Virginia lawyer who helps miners navigate the complex claims

process. In the administrative court system, companies are permitted to have their own doctors

examine the miners who file claims.

The decision ultimately falls to administrative law judges, who often are forced to weigh

conflicting accounts from doctors hired by each side. One factor they use in deciding the case is

the background of the doctor who makes the decision, said retired Administrative Judge Edward

Miller. And few doctors reading black lung X-rays have better credentials than Wheeler.

"His paper credentials are excellent," Miller said. "He was a Harvard undergraduate. I think he

went to Harvard Medical School. He's been associated with-- Johns Hopkins for years and years

and years. And I think is credited with a very distinguished career."

Miller is the father of an ABC News employee.

What judges cannot consider, Miller said, is whether a doctor exhibits a pattern in how they read

coal miner X-rays. And among judges, Miller said, there is little doubt about the pattern

displayed by Wheeler and the Hopkins team. Coal companies hire Wheeler, Miller said,

"because they're apparently assured, I think, that he is one of the reliable doctors that they can

expect will not find [black lung disease] when he reads the X-ray."

Wheeler said in his interview with ABC News that he simply called cases as he saw them. In

sworn depositions, he has acknowledged that he cannot recall finding a severe case of the disease

in decades. Wheeler said he believes coal companies turn to his Johns Hopkins team less for his

findings than because of the hospital's respected name.

"I'd rather have them come to an academic center that's got worldwide recognition than go to a

facility that nobody's ever heard of outside of Baltimore," Wheeler said.

One such case involved Day, the longtime miner from Glen Fork, West Virginia. Day said he

promised his wife he would never work underground in the mines, but the money was alluring

and the options were slim.

"Now I'm paying the price," Day told ABC News.

Today, Day spends most of his time hooked up to an oxygen machine, slumped in a reclining

chair in the small clapboard house he shares with his wife, his daughter and her family. Even

though he has been treated for black lung disease for years, an administrative judge turned down

his claim for benefits. The decision was based largely on testimony from Wheeler, who said Day

was more likely suffering from tuberculosis or a disease called histoplasmosis which is a fungal infection caused by bird or bat droppings.

In his interview, Wheeler explained why he often writes in his reports that he considers

histoplasmosis the most likely cause of the lung damage he's seeing. The disease is endemic to

the region of the U.S. where most coal mining occurs, and while it is harmless to most people, it

can produce spots on the lungs that resemble the damage caused by black lung, he said.

"If I were a betting person, I would always bet on histoplasmosis, because it's very common," he

said.

Dr. Daniel Culver, a pulmonologist who treats black lung disease at the Cleveland Clinic, said

Wheeler is missing a crucial factor when he identifies the lung damage he is seeing as being

compatible with histoplasmosis that the patients have spent decades working in coal mines.

"The tenure of mining influences the likelihood of black lung disease," Culver said. "And that

has to go into the calculation."

As he does in nearly every report he writes, Wheeler also concluded Day's definitive diagnosis

would only be possible if he submitted to a biopsy of his lung tissue. "The diagnoses come out of

pathology," he told ABC News. "They do not come from X-rays."

This too, is an issue that raises concerns among Wheeler's critics. The process of awarding black

lung benefits was never intended to require miners to prove, beyond any doubt, that they had

contracted black lung disease, said Cline, the attorney. The law never required a biopsy, he said,

only an X-ray that showed there was damage compatible with black lung, and evidence that the

damage was severe enough to keep the miner from being able to work.

Other doctors interviewed by ABC News said they do not believe, as Wheeler asserts, that a

biopsy is necessary to reach a conclusion when coal workers are seeking black lung benefits.

"I have actually never done a biopsy to determine if a patient had black lung," Brooks said. "It's

just simply not necessary."

Moreover, it can be risky, Brooks said. He said in about 10 percent of cases, the act of inserting a

needle to extract tissue can cause a lung to collapse. And though it is rare, biopsies can lead to

complications that are even more serious. "It's not like going to the dentist and having your teeth

cleaned," he said.

Day said his doctor considered the invasive procedure too risky.

With Steve Day's permission, ABC News and the Center for Public Integrity sent his medical

records to Dr. John Parker, chief of pulmonary and critical-care medicine at West Virginia

University. Parker was not told of Wheeler's earlier involvement in Day's legal case. But after

reviewing the X-rays and CT scans, he said he was surprised that any doctor could look at the

images and not immediately identify the cause of the lung damage. It was, he said, "a classic

presentation" of black lung.

"I think that there is bias in someone's interpretation if they don't consider black lung the major,

if not only, explanation for this radiograph," Parker said. "It disappoints me," Parker added,

"because physicians are in a special fraternity, sorority, a profession in which scientific and

intellectual honesty is paramount to our patients and to society."

Day confesses he is still angry about the doctors whose opinions left him without the benefit

payments that could help his wife and family through the winter. Not only were they denied the

compensation, they were asked to return $46,000 in payments they had received after initially

winning, then awaiting an administrative court ruling on the company's appeal.

Ultimately, the government forgave their debt, but Day's wife, Nyoka said the added stress it

induced was just one more insult to her husband, and to all coal miners. Asked how she felt

about the government's efforts to support coal miners who are suffering from black lung, Nyoka

Day returned again and again to the same word.

"Cheated."

"My kids were cheated. My grandchild is cheated. He's cheated," she said tearfully, pointing to

her husband. "He gave his life in the mines And it's unfair. If he doesn't have black lung, black lung never did exist for anybody."

Chris Hamby is an investigative reporter for the Center for Public Integrity.

http://abcnews.go.com/Blotter/investigation-johns-hopkins-tough-questions-black-lung-

money/story?id=20721430&singlePage=true

Top Hospital Suspends Black Lung Program After ABC News Report Nov. 1, 2013

By BRIAN ROSS, MATTHEW MOSK and CHRIS HAMBY

Panoramic view of the Johns Hopkins Hospital Campus in Baltimore.

Newscom

Johns Hopkins Medicine has suspended its black lung program pending a review in response to

an ABC News investigation with the Center for Public Integrity that showed how medical

opinions from doctors at the prestigious hospital have helped the coal companies thwart efforts

by ailing mine workers to receive disability benefits.

During the report, which aired on "World News with Diane Sawyer" and "Nightline", U.S. Sen.

Jay Rockefeller, D-W.Va., called the treatment of coal miners "a national disgrace."

"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."

ABC NEWS REPORT: For Top Hospital, Tough Questions About Black Lung and Money

Hopkins decision came as United States senators from coal country announced they have begun

working on new legislation to address "troubling concerns" prompted by 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 Rockefeller to develop

new legislation to address this problem."

In an interview with ABC News, Rockefeller said it was "tragic" that ailing coal miners were

battling high-priced lawyers and doctors hired by coal companies when they tried to obtain

disability benefits reserved for workers afflicted with black lung disease. And more than 90

percent of the time, the miners were losing those battles.

INTERACTIVE: Out of Breath, The Untold Story of Big Money, Black Lung and Doctors for the

Coal Companies

At the center of the ABC News report was the work performed by Dr. Paul Wheeler, who heads

a unit at Johns Hopkins Hospital where radiologists read X-rays of coal miners seeking black

lung benefits. Wheeler found not a single case of severe black lung in the more than 1,500 cases

decided since 2000 in which he offered an opinion, a review by ABC News and the Center for

Public Integrity found. In recent court testimony, 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."

In his interview with ABC News for the original report, Wheeler stood by his record. "I've

always staked out the high ground," he said.

Officials with the United Mine Workers, the labor union that represents coal miners, expressed

outrage at the ABC News report and called on the federal agency that oversees the nationwide

network of doctors who read X-rays in black lung cases to prohibit Wheeler from further

involvement in black lung cases.

"Whatever penalties or punitive actions that can be taken with respect to Dr. Wheeler should be,"

said Phil Smith, the spokesman for the union. "But whatever they are, they will pale in

comparison to the pain and suffering he has caused thousands of afflicted miners. There is no

penalty which will make up for that."

Earlier Friday, Johns Hopkins Medicine posted a statement on its website saying the hospital was

"carefully reviewing" the media report and the top-ranked hospital's black lung unit.

"We take very seriously the questions raised in a recent ABC News report about our second

opinions for black lung disease, and we are carefully reviewing the news story and our [black lung] service," the statement said.

Prior to the airing of the report on Wednesday, Hopkins sent a written statement to ABC News,

strongly defending Dr. Wheeler and saying "to our knowledge, no medical or regulatory

authority has ever challenged or called into question any of our diagnoses, conclusions or

reports" from the black lung program.

READ: Johns Hopkins Full Statement to ABC News

The news report triggered a vocal response from lawmakers and advocates for miners about the

challenges the coal workers were confronting when trying to obtain the monthly disability

payments from their employers.

"This scathing report lays bare for the public something miners and their families in the coal

fields have known for decades," said Richard Trumka, president of the AFL-CIO, and a former

president of the union's affiliate, the United Mine Workers. "Even with my years of experience in

the mines and as a union leader, knowing full well that coal companies have been cheating

miners since the day coal was hand loaded and weighed I was sickened and angered" by the report.

"You don't have to be a doctor at Johns Hopkins to know black lung disease when you see it,"

said Trumka, who noted that his father died from the disease.

Chris Hamby is an investigative reporter for the Center for Public Integrity.

http://abcnews.go.com/Blotter/top-hospital-suspends-black-lung-program-abc-

news/story?id=20760361&singlePage=true

Lawmakers Want Tougher Legislation for Black Lung Miners Nov. 5, 2013

By BRIAN ROSS, MATTHEW MOSK and CHRIS HAMBY

Miner Gary Fox

Courtesy Fox family

U.S. senators are crafting legislation to reform the black lung benefits program, using a series of

reports by ABC News and the Center for Public Integrity as a guide, Sen. Robert Casey said

Monday.

"The system didn't work" for ailing miners, Casey said in an interview. "Their government failed

them as well as their company failing. So we have, I think, an abiding obligation to right this

wrong."

The news reports revealed how lawyers and doctors retained by coal companies have played a

key role in helping defeat the benefits claims of miners sick and dying of black lung disease.

Casey, D-Pa., said he is working with Sen. Jay Rockefeller, D-W.Va., to identify gaps in a bill

previously introduced by Rockefeller. And he said he wants to strengthen the legislation to better

protect miners.

ORIGINAL ABC NEWS REPORT: For Top Hospital, Tough Questions About Black Lung and

Money

The U.S. Labor Department is helping the senators craft the bill, the department's top lawyer said

Monday.

Meanwhile, government and union officials kept the pressure on Johns Hopkins Medicine, which

announced Friday it was suspending its program of reading X-rays for black lung, pending a

review, in response to the investigation by ABC News and the Center for Public Integrity.

Doctors in the black lung unit at Johns Hopkins Hospital have amassed a long record of reading

coal miner X-rays as negative for severe black lung, a review of records found.

The leader of the unit, Dr. Paul Wheeler, has been involved in more than 1,500 cases decided

since 2000, according to available case files examined by ABC News and CPI, but never found

the severe form of black lung that automatically triggers benefits. Wheeler has defended his

work, saying he is following standard medical practice.

INTERACTIVE: Out of Breath, The Untold Story of Big Money, Black Lung and Doctors for the

Coal Companies

The government agency that certifies doctors to read X-rays for black lung issued a statement

Monday saying it was "deeply disturbed" by the findings of the CPI-ABC News investigation.

The agency, the National Institute for Occupational Safety and Health (NIOSH), said efforts to

address the problems raised in the reports should emphasize "accuracy and mainstream views

and minimize the impact of outlying views."

"In light of the recent troubling reports, NIOSH applauds the decision of the Johns Hopkins

School of Medicine to investigate its [black lung X-ray reading] service and offers whatever

assistance we can provide," the agency wrote.

The union representing miners called for an investigation of doctors in the Johns Hopkins unit.

Daniel Kane, the international secretary treasurer of the United Mine Workers of America and a

former miner himself, also demanded cases involving Wheeler be reopened.

"I'd like to see the truth come out," he said. "I'd like to see the wrongdoers in this system exposed

for what they've been doing. More than anything, I'd like to see the miners fairly compensated."

Casey also suggested a second look at cases in which miners may have been wrongfully denied

benefits. "I think we should examine ways to reopen cases," he said.

The black lung benefits program was set up in the late 1960s to recognize the unique health risks

faced by coal workers. It was supposed to provide financial support if the miner became too sick

to work. But in recent years, as coal companies appealed awards to miners, fewer than 10 percent

of applicants have been granted their benefits.

Solicitor of Labor Patricia Smith called that track record unacceptable. She said the Labor

Department will monitor how administrative law judges weigh medical opinions, saying they

should examine a doctor's credibility, not just credentials. The opinions of Wheeler and his

colleagues have been key in many cases largely because of their affiliation with the prestigious

institution and their backgrounds.

"What I need to look at is whether there's a legal problem," Smith said. "I'm going to be thinking

about that long and hard."

Before the news reports, Johns Hopkins defended the unit's X-ray readings in black lung cases; it

has since said it takes "very seriously the questions raised" in the reports, suspending the

program pending a review.

Casey said the overall findings of the ABC News investigation with the Center were disturbing.

"It just shows us there's a lot more work to do," he said. "There's a real sense of frustration when

you see we haven't made nearly as much progress as we thought we were making before having

read this report."

Chris Hamby is an investigative reporter for the Center for Public Integrity.

http://abcnews.go.com/Blotter/lawmakers-tougher-legislation-black-lung-

miners/story?id=20787026&singlePage=true

OUT OF BREATH: An ABC News Interactive Infographic:

Click here to access the ABCNews.com interactive infographic:

http://abcnews.go.com/Blotter/fullpage/black-lung-interactive-infographic-

breath-20729126

BREATHLESS and BURDENED:

The Center for Public Integrity investigative series

Click here to access the Center for Public Integrity series:

http://www.publicintegrity.org/environment/breathless-and-burdened