Editorials

Kentucky just put doctor shopping into law to help coal companies avoid paying for black lung

Ernie Gillispie, who was diagnosed with black lung after 37 years of working in Kentucky coal mines, received a double lung transplant at the University of Kentucky in 2011.
Ernie Gillispie, who was diagnosed with black lung after 37 years of working in Kentucky coal mines, received a double lung transplant at the University of Kentucky in 2011.

On July 14, the coal industry’s doctor-shopping was enshrined in Kentucky law as a spate of new laws took effect.

One of them, House Bill 2, makes it harder for Kentuckians hurt on the job to qualify for workers compensation to pay for treatment of occupational injuries and diseases, especially if they are coal miners suffering from black lung.

Enacted with mostly Republican votes, the new law excludes the most qualified physicians from being heard in black lung claims.

One physician in particular seems to be the target of this change.

Dr. Brandon Crum, a Pikeville radiologist, alerted federal health officials to a disturbing spike in black lung disease, which the National Institute for Occupational Safety and Health confirmed.

Crum is one of a few hundred practicing physicians qualified under federal law to assess damage to lungs from breathing coal-mine dust or asbestos by reading X-rays. Every four years qualified physicians must pass the B Reader exam, administered at a NIOSH lab in Morgantown, W. Va.

By training and experience, radiologists are most qualified to detect and measure black lung.

But at the behest of the coal industry, Kentucky’s legislature mandated that only opinions from pulmonologists who are B readers will be considered when deciding black lung benefits. Kentucky has only seven doctors meeting the dual qualification. It’s still unknown how many of them will participate in the workers comp program. It is known that most of them have worked for coal companies in the past.

In April, the American College of Radiologists called on the legislature to rescind the change, reported Benny Becker of the Ohio Valley ReSource, who also first reported how the legislation would hurt coal miners.

HB 2 sponsor Rep. Adam Koenig, R-Erlanger, said the change was necessitated by a 2011 state Supreme Court ruling. It struck down a law that held coal miners to a higher standard of proof than workers claiming benefits for other lung diseases. The new law harms all workers equally by limiting the pool of doctors for anyone seeking compensation for occupational lung disease.

A large backlog of black lung cases built up while the lawsuit that overturned the old law was pending. A radical workers comp revamp in 1996 had nearly ended state workers comp awards for black lung. After the 2011 ruling, miners began to again win black lung cases.

The 1996 law also produced a dramatic reduction in the cost of workers compensation to employers. Workers comp premiums in Kentucky are 12 percentage points below the national median, according to a biennial survey by the Oregon Department of Insurance.

Black lung rates, by contrast, are rising steeply, to the highest in a quarter-century in Central Appalachia, where 20 percent of miners who have worked underground for 25 years have the incurable disease, according to a study published July 19 and conducted by three NIOSH researchers.

“We can think of no other industry or workplace in the United States in which this would be considered acceptable,” the NIOSH authors wrote.

So, what did our coal-loving legislature do? Tilted the law against miners in favor of the industry that failed to protect them from dangerous levels of dust.

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