The Center for Public Integrity reports how a prominent law firm has withheld evidence of black lung in cases over the years, helping to defeat the benefits claims of sick miners.
Part Two: The Doctors
by Chris Hamby; Brian Ross; Matthew Mosk
The Center, in partnership with ABC News, reports on the crucial role played by doctors — including a unit at the nation’s top-ranked hospital — in helping to beat back miners’ benefits claims. Reports will appear on publicintegrity.org and abcnews.go.com, and televised segments will air on World News and Nightline.
Part Three: The Next Battleground
GLEN
FORK, W.Va. — Across Laurel Creek and down a dirt road in this
sleepy valley town is the modest white house where Steve Day grew up.
For more than 33 years, it was where he recuperated between shifts
underground, mining the rich seams of the central Appalachian
coalfields and doing his part to help make Peabody Energy Corp. the
nation’s most productive coal company. Now, it’s where he spends
most days and nights in a recliner, inhaling oxygen from a tank,
slowly suffocating to death.
More
than a half-dozen doctors who have seen the X-ray and CT images of
his chest agree he has the most severe form of black lung disease.
Yet his claim for benefits was denied in 2011, leaving him and his
family to survive on Social Security and a union pension; they
sometimes turn to neighbors or relatives for loans to make it through
the month.
The
medical opinions primarily responsible for sinking his claim didn’t
come from consultants-for-hire at a private firm or rogue doctors at
a fringe organization.
They
came from a respected household name: the Johns Hopkins Medical
Institutions.
The
Johns Hopkins University often receives attention for its medical
discoveries and well-regarded school of public health, and its
hospital recently was ranked the nation’s best by U.S. News and
World Report.
What
has remained in the shadows is the work of a small unit of
radiologists who are professors at the medical school and physicians
at the hospital. For 40 years, these doctors have been perhaps the
most sought-after and prolific readers of chest films on behalf of
coal companies seeking to defeat miners’ claims. Their fees flow
directly to the university, which supports their work, an
investigation by the Center for Public Integrity and ABC News has
found. According to the university, none of the money goes directly
to the doctors.
Their
reports — seemingly ubiquitous and almost unwaveringly negative for
black lung — have appeared in the cases of thousands of miners, and
the doctors’ credentials, combined with the prestigious Johns
Hopkins imprimatur, carry great weight. Their opinions often negate
or outweigh whatever positive interpretations a miner can produce.
For
the credibility that comes with these readings, which the doctors
perform as part of their official duties at Johns Hopkins, coal
companies are willing to pay a premium. For an X-ray reading, the
university charges up to 10 times the rate miners typically pay their
physicians.
Doctors
have come and gone from the unit over the years, but the leader and
most productive reader for decades has been Dr. Paul Wheeler, 78, a
slight man with a full head of gray hair and strong opinions.
In
the federal black lung system, cases often boil down to dueling
medical experts, and judges rely heavily on doctors’ credentials to
resolve disputes.
When
it comes to interpreting the chest films that are vital in most
cases, Wheeler is the coal companies’ trump card. He has
undergraduate and medical degrees from Harvard University, a long
history of leadership at Johns Hopkins and an array of presentations
and publications to his credit. In many cases, judges have noted
Johns Hopkins’ prestige and described Wheeler’s qualifications as
“most impressive,” “outstanding” and “superior.” Time and
again, judges have deemed him the “best qualified radiologist,”
and they have reached conclusions such as, “I defer to Dr.
Wheeler’s interpretation because of his superior credentials.”
Yet
there is strong evidence that this deference has contributed to
unjust denials of miners’ claims, the Center found as part of a
yearlong investigation, “Breathless and Burdened.” The Center
created a database of doctors’ opinions — none previously existed
— scouring thousands of judicial opinions kept by the Labor
Department dating to 2000 and logging every available X-ray reading
by Wheeler. The Center recorded key information about these cases,
analyzed Wheeler’s reports and testimony, consulted medical
literature and interviewed leading doctors. The findings are stark:
In
the more than 1,500 cases decided since 2000 in which Wheeler read at
least one X-ray, he never once found the severe form of the disease,
complicated coal workers’ pneumoconiosis. Other doctors looking at
the same X-rays found this advanced stage of the disease in 390 of
these cases.
Since
2000, miners have lost more than 800 cases after doctors saw black
lung on an X-ray but Wheeler read the film as negative. This includes
160 cases in which doctors found the complicated form of the disease.
When Wheeler weighed in, miners lost nearly 70 percent of the time
before administrative law judges. The Labor Department does not have
statistics on miners’ win percentage in all cases at this stage for
comparison purposes.
Where
other doctors saw black lung, Wheeler often saw evidence of another
disease, most commonly tuberculosis or histoplasmosis — an illness
caused by a fungus in bird and bat droppings. This was particularly
true in cases involving the most serious form of the disease. In
two-thirds of cases in which other doctors found complicated black
lung, Wheeler attributed the masses in miners’ lungs to TB, the
fungal infection or a similar disease.
The
criteria Wheeler applies when reading X-rays are at odds with
positions taken by government research agencies, textbooks,
peer-reviewed scientific literature and the opinions of many doctors
who specialize in detecting the disease, including the chair of the
American College of Radiology’s task force on black lung.
Biopsies
or autopsies repeatedly have proven Wheeler wrong. Though Wheeler
suggests miners undergo biopsies — surgical procedures to remove a
piece of the lung for examination — to prove their cases, such
evidence is not required by law, is not considered necessary in most
cases and can be medically risky. Still, in more than 100 cases
decided since 2000 in which Wheeler offered negative readings,
biopsies or autopsies provided undisputed evidence of black lung.
In
an interview, Wheeler held strongly to his views. In his telling, he
is more intellectually honest than other doctors because he
recognizes the limitations of X-rays and provides potential
alternative diagnoses, and he is adhering to a higher standard of
medical care by demanding biopsies to ensure patients get proper
treatment.
“I’ve
always staked out the high ground,” Wheeler said.
The
university defended Wheeler, saying in a statement he “is an
established radiologist in good standing in his field.”
For
decades, Dr. Paul Wheeler has led a unit of radiologists at Johns
Hopkins who often are enlisted by the coal industry to read X-rays in
black lung benefits cases. The Center for Public Integrity identified
more than 1,500 cases decided since 2000 in which Wheeler was
involved, reading a total of more than 3,400 X-rays. In these cases,
he never found a case of complicated black lung, and he read an X-ray
as positive for the earlier stages of the disease in less than 4
percent of cases. Subtracting from these the cases in which he
ultimately concluded another disease was more likely, this number
drops to about 2 percent.
 |
| Normal chest X-ray |
University
officials questioned the findings by the Center and ABC, requesting
extensive documentation, which the news agencies provided. After
initially promising responses, officials at Johns Hopkins did not
answer most questions but instead provided a general written
statement.
“To
our knowledge, no medical or regulatory authority has ever challenged
or called into question any of our diagnoses, conclusions or reports
resulting from the … program,” the statement said.
After
the Center and ABC again posed questions about documents showing that
judges and government officials had challenged the opinions of
Wheeler and his colleagues on numerous occasions, university
officials sent the same statement again.
That
statement also said, “In the more than 40 years since this
program’s inception, [Johns Hopkins radiologists] have confirmed
thousands of cases to be compatible with [black lung].”
In
some cases reviewed by the Center and ABC, Wheeler opined that an
X-ray could be compatible with black lung but that another disease
was more likely, ultimately grading the film as negative.
The
news organizations asked the university how many times he had
provided a truly positive reading; Johns Hopkins officials would not
answer or clarify what they meant by “compatible.”
Judges
at varying times have called Wheeler’s opinions “disingenuous,”
“erroneous,” “troubling” and “antithetical to …
regulatory policy,” court records show.
One
judge dedicated an entire section of his ruling 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,” he wrote, “but
this record belies the notion that the errors by Drs. Wheeler [and
two colleagues] were mere oversight.”
 |
| Chest X-ray w/ black lung |
But,
to discredit his readings and award benefits to a miner, as Levin
did, judges must identify a logical flaw or some other reason not to
give his opinion greater weight than those of other doctors. Former
judges said they knew certain doctors almost never found black lung,
but said they were barred from taking these experiences in other
cases into consideration. In four cases reviewed by the Center,
judges who have questioned Wheeler have seen their decisions vacated
by an appeals board.
Retired
judge Edward Terhune Miller, who often saw Wheeler’s opinions in
cases before him, said he sometimes was compelled to deny claims even
when he had serious doubts about the opinions of coal-company experts
from Hopkins and elsewhere. Miners often were unable to provide
enough evidence to overcome these opinions, and he wasn’t allowed
to take his personal knowledge of doctors’ tendencies into account.
“That’s one of the frustrations in the process,” said the
former judge. “There’s no doubt about it.”
Wheeler
said he is sure miners who don’t have black lung are being
wrongfully compensated. “They’re getting payment for a disease
that they’re claiming that is some other disease,” the doctor
said.
He
takes issue with a law passed by Congress in 1969 that was crafted to
lessen the burden of sick miners while limiting coal companies’
liabilities. Benefit payments for a miner start at just over $600 a
month and max out at about $1,250 monthly for a miner with three or
more dependents. Because these caps are low and miners are presumed
to be at a particular risk for the disease, the system does not
require they prove their cases beyond all doubt. Still, miners must
show that they have black lung and that, because of it, they are
totally disabled. About 85 percent of claims are denied at the
initial level.
“I
think if they have [black lung], it should be up to them to prove
it,” Wheeler said. To him, this means undergoing a biopsy. If
miners don’t submit to the procedure, he said, it suggests they may
be afraid the results will show they have something other than black
lung.
DR.
PAUL WHEELER, RADIOLOGIST FOR JOHNS HOPKINS
Biopsies
are rarely necessary to diagnose the disease and can put the patient
at risk, according to the American Lung Association, the National
Institute for Occupational Safety and Health (NIOSH), the Labor
Department, a paper published by the American Thoracic Society and
prominent doctors interviewed by the Center.
Told
his higher standard of proof, which he maintains is ordinary medical
practice, is not required by law, Wheeler held firm.
“I
don’t care about the law,” he said.
‘Victimized
twice’
To
people in the southern West Virginia town of Glen Fork, he is “Steve”
— longtime miner, father of three, Vietnam veteran. To Dr. Paul
Wheeler, from his vantage 400 miles away, he was “Michael S. Day
Sr.,” 58, another referral from corporate defense firm Bowles Rice
LLP.
Wheeler
has never been in a coal mine or met Steve Day. His opinion, though,
proved crucial in Day’s case.
In
2004, after more than three decades in jobs that exposed him to high
levels of dust, Day’s breathing worsened to the point his doctor
urged him to get out of mining. In January 2005, he filed a claim for
federal black lung benefits.
The
Labor Department pays for a medical examination by a doctor from an
approved list. Day unwittingly chose a doctor who commonly testifies
for coal companies, yet even this physician diagnosed the most
advanced stage of complicated black lung.
Then
the opinions from Johns Hopkins began arriving.
A
CT scan interpretation by Dr. John Scatarige, who is no longer at the
university: Large masses in the lungs, probably tuberculosis, or
maybe a fungal disease, or cancer. Black lung unlikely.
Two
X-ray readings by radiologist William Scott Jr., with the university
since the early 1970s: Large masses in the lungs, probably
tuberculosis. Black lung unlikely.
And,
most vitally, three X-ray readings and a CT scan interpretation by
Wheeler: Large masses in the lungs, probably tuberculosis,
histoplasmosis or a similar disease. Black lung unlikely.
Peabody
subsidiary Eastern Associated Coal Corp.’s chosen pulmonologist to
review the evidence, Dr. Robert Crisalli, originally found black lung
but changed his opinion after seeing Wheeler’s interpretations. He
adopted most of Wheeler’s views and testified, “The basis for the
conclusions primarily centers around the imaging, including the CT
scans.”
Day
lost.
A
spokesman for Peabody spinoff Patriot Coal Corp., which now owns the
subsidiary that employed Day, declined to comment, as did a
spokesperson for Peabody.
Like
many miners, Day relied primarily on the opinion of the doctor who
examined him for the Labor Department and the records from his
treatment over the years. He was at a distinct disadvantage, squared
off against the radiologists at Johns Hopkins.
In
determining Day didn’t have black lung, the Johns Hopkins experts
relied on the same criteria they have recited in countless cases
reviewed by the Center. Put simply, the white spots that show up on
film must have a particular shape, appear in a specific area of the
lung and follow a specific pattern.
At
the Center’s request, a physician not involved in the case, Dr.
John E. Parker, reviewed Day’s X-rays and CT scans taken between
2003 and 2012. Parker worked at NIOSH for 15 years, much of the time
as director of the X-ray surveillance program and the program to
certify qualified readers. He is now chief of pulmonary and critical
care medicine at the West Virginia University School of Medicine, and
travels the world teaching doctors to read X-rays in seminars, many
for NIOSH and the American College of Radiology.
 |
| Steve Day, miner |
Parker
was told only Day’s name, age, number of years mining and the fact
that the interpretation of the films was disputed.
His
clear-cut conclusion: Complicated black lung. “Based on my findings
in reviewing this case, and the classic nature of the medical imaging
and history, I am deeply saddened and concerned to hear that any
serious dispute is occurring regarding the interpretation of his
classically abnormal medical imaging,” Parker wrote. “If other
physicians are reaching different conclusions about this case … it
gives me serious pause and concern about bias and the lack of
scientific independence or credibility of these observers.”
Told
later that Day had lost his case, Parker was taken aback.
“It
breaks my heart,” he said. “This man has been victimized twice —
once by the conditions that allowed him to get this disease and again
by a benefits system that failed him.”
Johns
Hopkins experts help defeat hundreds of claims
The
Center’s review of thousands of cases suggests there are many more
men like Day. Since 2000, miners have lost more than 800 cases after
at least one doctor found black lung on an X-ray but Wheeler read it
as negative. This includes 160 cases in which other doctors saw the
complicated form of the disease.
George
Hager, for example, worked in the mines for 37 years, and three
doctors saw complicated black lung on his X-rays and CT scan. Three
Johns Hopkins radiologists, including Wheeler, saw something else —
perhaps tuberculosis or histoplasmosis. The judge noted the
affiliation of the Johns Hopkins doctors and their “superior
qualifications.” Hager lost.
Douglas
Hall’s 27 years underground came to an end at the advice of his
doctor; he couldn’t walk 100 feet without struggling for breath.
Four doctors read his X-rays as complicated black lung, but, again,
three Hopkins radiologists, Wheeler among them, graded them as
negative, finding tuberculosis or histoplasmosis more likely. Though
tests for both diseases came back negative, Hall lost.
Keith
Darago initially won twice. Three doctors saw complicated black lung
on his X-rays and CT scans, and Administrative Law Judge Linda
Chapman rejected attempts by the three Johns Hopkins radiologists to
attribute the masses on the films to tuberculosis or a similar
disease, particularly given Darago’s negative tuberculosis test and
lack of history of any other disease.
But
the Benefits Review Board, the highest appeals court in the
administrative system, vacated the award of benefits twice and, at
the coal company’s lawyers’ request, referred the case to a
different judge. This time, the judge found the evidence on film to
be a wash. Darago lost.
Some
miners or their surviving family members continue to file claims,
occasionally winning after their disease worsens or they die. Others
simply give up, tired of fighting.
“I
think it’s a bad deal,” said Rodney Gibson, another miner whose
case followed a similar pattern. All the evidence of complicated
black lung he presented wasn’t enough. “They come out with a way
of getting around it somehow,” he said.
The
Center reports on the newest battle in the long-running war between
coal companies and miners, revealing the latest industry effort to
defuse emerging scientific evidence and contain its liabilities.
For
decades, Dr. Paul Wheeler has led a unit of radiologists at Johns
Hopkins who often are enlisted by the coal industry to read X-rays in
black lung benefits cases. The Center for Public Integrity identified
more than 1,500 cases decided since 2000 in which Wheeler was
involved, reading a total of more than 3,400 X-rays. In these cases,
he never found a case of complicated black lung, and he read an X-ray
as positive for the earlier stages of the disease in less than 4
percent of cases. Subtracting from these the cases in which he
ultimately concluded another disease was more likely, this number
drops to about 2 percent.
University
officials questioned the findings by the Center and ABC, requesting
extensive documentation, which the news agencies provided. After
initially promising responses, officials at Johns Hopkins did not
answer most questions but instead provided a general written
statement.
“To
our knowledge, no medical or regulatory authority has ever challenged
or called into question any of our diagnoses, conclusions or reports
resulting from the … program,” the statement said.
After
the Center and ABC again posed questions about documents showing that
judges and government officials had challenged the opinions of
Wheeler and his colleagues on numerous occasions, university
officials sent the same statement again.
That
statement also said, “In the more than 40 years since this
program’s inception, [Johns Hopkins radiologists] have confirmed
thousands of cases to be compatible with [black lung].”
In
some cases reviewed by the Center and ABC, Wheeler opined that an
X-ray could be compatible with black lung but that another disease
was more likely, ultimately grading the film as negative.
The
news organizations asked the university how many times he had
provided a truly positive reading; Johns Hopkins officials would not
answer or clarify what they meant by “compatible.”
Judges
at varying times have called Wheeler’s opinions “disingenuous,”
“erroneous,” “troubling” and “antithetical to …
regulatory policy,” court records show.
One
judge dedicated an entire section of his ruling 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,” he wrote, “but
this record belies the notion that the errors by Drs. Wheeler [and
two colleagues] were mere oversight.”
But,
to discredit his readings and award benefits to a miner, as Levin
did, judges must identify a logical flaw or some other reason not to
give his opinion greater weight than those of other doctors. Former
judges said they knew certain doctors almost never found black lung,
but said they were barred from taking these experiences in other
cases into consideration. In four cases reviewed by the Center,
judges who have questioned Wheeler have seen their decisions vacated
by an appeals board.
Retired
judge Edward Terhune Miller, who often saw Wheeler’s opinions in
cases before him, said he sometimes was compelled to deny claims even
when he had serious doubts about the opinions of coal-company experts
from Hopkins and elsewhere. Miners often were unable to provide
enough evidence to overcome these opinions, and he wasn’t allowed
to take his personal knowledge of doctors’ tendencies into account.
“That’s one of the frustrations in the process,” said the
former judge. “There’s no doubt about it.”
Wheeler
said he is sure miners who don’t have black lung are being
wrongfully compensated. “They’re getting payment for a disease
that they’re claiming that is some other disease,” the doctor
said.
He
takes issue with a law passed by Congress in 1969 that was crafted to
lessen the burden of sick miners while limiting coal companies’
liabilities. Benefit payments for a miner start at just over $600 a
month and max out at about $1,250 monthly for a miner with three or
more dependents. Because these caps are low and miners are presumed
to be at a particular risk for the disease, the system does not
require they prove their cases beyond all doubt. Still, miners must
show that they have black lung and that, because of it, they are
totally disabled. About 85 percent of claims are denied at the
initial level.
“I
think if they have [black lung], it should be up to them to prove
it,” Wheeler said. To him, this means undergoing a biopsy. If
miners don’t submit to the procedure, he said, it suggests they may
be afraid the results will show they have something other than black
lung.
“I
think if they have [black lung], it should be up to them to prove
it.”
DR.
PAUL WHEELER, RADIOLOGIST FOR JOHNS HOPKINS
Biopsies
are rarely necessary to diagnose the disease and can put the patient
at risk, according to the American Lung Association, the National
Institute for Occupational Safety and Health (NIOSH), the Labor
Department, a paper published by the American Thoracic Society and
prominent doctors interviewed by the Center.
Told
his higher standard of proof, which he maintains is ordinary medical
practice, is not required by law, Wheeler held firm.
“I
don’t care about the law,” he said.
Retired
miner Steve Day at his West Virginia home F. Brian Ferguson/Center
for Public Integrity
‘Victimized
twice’
To
people in the southern West Virginia town of Glen Fork, he is “Steve”
— longtime miner, father of three, Vietnam veteran. To Dr. Paul
Wheeler, from his vantage 400 miles away, he was “Michael S. Day
Sr.,” 58, another referral from corporate defense firm Bowles Rice
LLP.
Wheeler
has never been in a coal mine or met Steve Day. His opinion, though,
proved crucial in Day’s case.
In
2004, after more than three decades in jobs that exposed him to high
levels of dust, Day’s breathing worsened to the point his doctor
urged him to get out of mining. In January 2005, he filed a claim for
federal black lung benefits.
The
Labor Department pays for a medical examination by a doctor from an
approved list. Day unwittingly chose a doctor who commonly testifies
for coal companies, yet even this physician diagnosed the most
advanced stage of complicated black lung.
Then
the opinions from Johns Hopkins began arriving.
This
image, taken from a 2012 CT scan of Steve Day, shows a large mass in
each lung. Dr. John E. Parker, who used to run the government’s
X-ray surveillance program, says they represent a classic case of
complicated black lung.
A
CT scan interpretation by Dr. John Scatarige, who is no longer at the
university: Large masses in the lungs, probably tuberculosis, or
maybe a fungal disease, or cancer. Black lung unlikely.
Two
X-ray readings by radiologist William Scott Jr., with the university
since the early 1970s: Large masses in the lungs, probably
tuberculosis. Black lung unlikely.
And,
most vitally, three X-ray readings and a CT scan interpretation by
Wheeler: Large masses in the lungs, probably tuberculosis,
histoplasmosis or a similar disease. Black lung unlikely.
Peabody
subsidiary Eastern Associated Coal Corp.’s chosen pulmonologist to
review the evidence, Dr. Robert Crisalli, originally found black lung
but changed his opinion after seeing Wheeler’s interpretations. He
adopted most of Wheeler’s views and testified, “The basis for the
conclusions primarily centers around the imaging, including the CT
scans.”
Day
lost.
A
spokesman for Peabody spinoff Patriot Coal Corp., which now owns the
subsidiary that employed Day, declined to comment, as did a
spokesperson for Peabody.
Like
many miners, Day relied primarily on the opinion of the doctor who
examined him for the Labor Department and the records from his
treatment over the years. He was at a distinct disadvantage, squared
off against the radiologists at Johns Hopkins.
In
determining Day didn’t have black lung, the Johns Hopkins experts
relied on the same criteria they have recited in countless cases
reviewed by the Center. Put simply, the white spots that show up on
film must have a particular shape, appear in a specific area of the
lung and follow a specific pattern.
At
the Center’s request, a physician not involved in the case, Dr.
John E. Parker, reviewed Day’s X-rays and CT scans taken between
2003 and 2012. Parker worked at NIOSH for 15 years, much of the time
as director of the X-ray surveillance program and the program to
certify qualified readers. He is now chief of pulmonary and critical
care medicine at the West Virginia University School of Medicine, and
travels the world teaching doctors to read X-rays in seminars, many
for NIOSH and the American College of Radiology.
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Parker
was told only Day’s name, age, number of years mining and the fact
that the interpretation of the films was disputed.
His
clear-cut conclusion: Complicated black lung. “Based on my findings
in reviewing this case, and the classic nature of the medical imaging
and history, I am deeply saddened and concerned to hear that any
serious dispute is occurring regarding the interpretation of his
classically abnormal medical imaging,” Parker wrote. “If other
physicians are reaching different conclusions about this case … it
gives me serious pause and concern about bias and the lack of
scientific independence or credibility of these observers.”
Told
later that Day had lost his case, Parker was taken aback.
“It
breaks my heart,” he said. “This man has been victimized twice —
once by the conditions that allowed him to get this disease and again
by a benefits system that failed him.”
Johns
Hopkins experts help defeat hundreds of claims
The
Center’s review of thousands of cases suggests there are many more
men like Day. Since 2000, miners have lost more than 800 cases after
at least one doctor found black lung on an X-ray but Wheeler read it
as negative. This includes 160 cases in which other doctors saw the
complicated form of the disease.
George
Hager, for example, worked in the mines for 37 years, and three
doctors saw complicated black lung on his X-rays and CT scan. Three
Johns Hopkins radiologists, including Wheeler, saw something else —
perhaps tuberculosis or histoplasmosis. The judge noted the
affiliation of the Johns Hopkins doctors and their “superior
qualifications.” Hager lost.
Douglas
Hall’s 27 years underground came to an end at the advice of his
doctor; he couldn’t walk 100 feet without struggling for breath.
Four doctors read his X-rays as complicated black lung, but, again,
three Hopkins radiologists, Wheeler among them, graded them as
negative, finding tuberculosis or histoplasmosis more likely. Though
tests for both diseases came back negative, Hall lost.
Keith
Darago initially won twice. Three doctors saw complicated black lung
on his X-rays and CT scans, and Administrative Law Judge Linda
Chapman rejected attempts by the three Johns Hopkins radiologists to
attribute the masses on the films to tuberculosis or a similar
disease, particularly given Darago’s negative tuberculosis test and
lack of history of any other disease.
But
the Benefits Review Board, the highest appeals court in the
administrative system, vacated the award of benefits twice and, at
the coal company’s lawyers’ request, referred the case to a
different judge. This time, the judge found the evidence on film to
be a wash. Darago lost.
Some
miners or their surviving family members continue to file claims,
occasionally winning after their disease worsens or they die. Others
simply give up, tired of fighting.
“I
think it’s a bad deal,” said Rodney Gibson, another miner whose
case followed a similar pattern. All the evidence of complicated
black lung he presented wasn’t enough. “They come out with a way
of getting around it somehow,” he said.
Normal
X-ray
Steve
Day’s X-ray
An
X-ray of Steve Day’s chest, taken in 2009, shows two large masses
(indicated by arrows). On previous films, Dr. Paul Wheeler said the
masses likely were caused by tuberculosis or a fungal infection from
bird and bat droppings. A half-dozen doctors have interpreted the
masses as complicated black lung. Dr. John E. Parker, who used to run
the government’s X-ray surveillance program, said this X-ray shows
a classic case of the severe disease. Mouse over the X-rays to
magnify the images. Images: Yale Rosen (left), licensed CC BY-SA;
courtesy of Steve Day family (right)
‘Not
using the system properly’
Wheeler
flips a switch, and a tall panel hums to life, emanating a white glow
in the dark corridor where the Pneumoconiosis Section, as the group
of Johns Hopkins radiologists is known, does its work. Papers bearing
the letterhead of prominent corporate defense law firms sit at work
stations, and stacks of folders in a storage closet have names of
firms and coal companies written in Sharpie on their sides.
Wheeler
places a series of chest X-rays against the panel and describes what
he sees.
He
moves to films showing large white masses. One doesn’t have small
spots surrounding it and is “pretty high [in the lung] — I would
call it out of the strike zone,” he says. He again suspects the
fungal infection. “If you want to bet against histoplasmosis,
you’re going to lose an awful lot,” he says.
These
X-rays, however, are not disputed films in a benefits case. They are
the standard X-rays that the government says show pneumoconiosis —
a family of disease that includes black lung and asbestosis, but not
histoplasmosis, tuberculosis and similar illnesses. When reading for
pneumoconiosis, government-certified readers are supposed to place
the unknown X-ray next to these films; they are classic cases meant
to be standards for comparison.
Wheeler
questions this and says the classification system has “some quality
issues.” He adds, “These are not proven.”
Experts
like Wheeler must pass an exam every four years to retain their
government certification. If a doctor were to classify these films as
negative during that exam, the physician very likely would fail, said
David Weissman, director of NIOSH’s Division of Respiratory Disease
Studies, which sets the standards for how readings should be
performed.
Wheeler,
however, has continued to pass the exam for decades, most recently
this April.
The
form used in the U.S. and many other countries for interpreting
X-rays contains boxes to grade what’s on the image and a comments
field for further explanation. If spots appear on the X-ray, a reader
is supposed to mark their size and shape, and then explain which
diseases seem more or less likely.
When
he reads X-rays for coal companies, however, Wheeler doesn’t do
this. If he sees spots on the film but thinks another disease is more
likely than black lung, he marks the film as negative. He typically
describes the abnormalities in the comments section, explaining why
they don’t meet his criteria for finding black lung. In case after
case reviewed by the Center, his comments were almost identical.
Weissman
said this approach is simply wrong.
“You’re
supposed to grade what’s there,” Weissman said. “You’re not
supposed to alter what the grade is based on what you think the
underlying cause is. That’s not using the system properly.”
In
a statement, university officials said the radiologists “adhere to
the clinical standards of diagnosis noted in the guidelines” put
forth by the International Labor Organization, upon which NIOSH
relies.
Wheeler
said he is being more responsible than other doctors by providing
multiple possible diagnoses. He often grades the film as negative but
says in the comments section that black lung is possible, but
unlikely.
The
practical effect of Wheeler’s readings: To rule out black lung.
Judges may consider the comments he writes, but the key, in comparing
Wheeler’s readings with others, is the negative numerical grade he
assigns.
In
depositions, he sometimes goes further to eliminate black lung as a
cause of a miner’s failing health. “He doesn’t have [black
lung],” he said in a 2004 case, for example. “[I]n no way is this
[black lung],” he said in another.
Weissman
said NIOSH often hears that some certified readers interpret X-rays
the way Wheeler does and that others over-diagnose diseases. “It’s
pretty frustrating sometimes when we hear of people that do well on
the exam and then go out in the real world and do other things,” he
said. “Absolutely that is a concern.”
The
agency’s authority, he said, doesn’t go beyond education,
training and administering the exam. People with complaints should
contact the state medical board, he said.
No,
by the numbers
There
is an unmistakable pattern in Wheeler’s readings. The Center
identified more than 1,500 cases decided since 2000 in which Wheeler
read at least one X-ray; in all, he interpreted more than 3,400 films
during this time.
The
numbers show his opinions consistently have benefited coal companies:
Wheeler
rated at least one X-ray as positive in less than 4 percent of cases.
Subtracting the cases in which he ultimately concluded another
disease was more likely, this number drops to about 2 percent.
In
80 percent of the X-rays he read as positive, Wheeler saw only the
earliest stage of the disease. He never once found advanced or
complicated black lung. Other readers, looking at the same images,
saw these severe forms of the disease on more than 750 films.
Where
other doctors saw black lung, Wheeler saw tuberculosis,
histoplasmosis or a similar disease on about 34 percent of X-rays.
This number shoots up in cases in which others saw complicated black
lung, which is so severe it triggers automatic compensation. In such
cases, Wheeler attributed the masses in miners’ lungs to these
other diseases on two-thirds of X-rays.
Asked
if he stood by this record, Wheeler said, “Absolutely.”
“I
have a perfect right to my opinion,” he added. “I found cases
that have masses and nodules. … In my opinion, those masses and
nodules were due to something more common.”
When
his views are questioned, Wheeler often shares anecdotes. He tells
the story of performing an autopsy during his residency on a woman
thought to have breast cancer; his examination revealed undetected
tuberculosis. Other common stories include his father’s severe
illness from histoplasmosis and a colleague’s bout with the
infection after spending a rainy night in an abandoned chicken coop.
In
a case decided in 2010, a doctor disputed Wheeler’s narrow view of
black lung, and the miner’s lawyer asked Wheeler during a
deposition whether he could cite medical literature to support his
views.
“I
don’t think I need medical literature,” Wheeler replied.
In
a 2009 letter submitted in another case, Wheeler questioned two
doctors who read X-rays as positive for black lung and wrote that he
and a colleague who had provided opinions in the case “are clinical
radiologists at one of the two or three best known hospitals in the
world.”
The
judge was not impressed. “This self-serving, egotistical diatribe
is unwarranted and very unprofessional,” he wrote.
Wheeler
took a similar approach in a recent interview, challenging the views
of any doctor, judge or organization — including the Labor
Department, NIOSH and the International Labor Organization — that
contradicted his. He said he’s never been told an interpretation of
his was wrong and he’d admit a mistake only if a biopsy or autopsy
showed black lung — and was performed by a pathologist with “proper
credentials.”
“I
know my credentials,” he said. “I’d like to make sure that the
people proving me wrong … have … credentials as good as mine.”
Proof
in the tissue
In
fact, tissue samples from miners’ lungs have proven Wheeler wrong
again and again.
The
pathologists providing the interpretations were enlisted by the coal
company in many cases, and they often came from well-regarded
academic medical centers, such as Washington University in St. Louis
and Case Western Reserve University, where Wheeler himself was a
resident. Some helped write widely accepted standards for diagnosis
of black lung with pathology and have been frequent experts for
companies defending claims.
Wheeler’s
readings were negative even in some cases in which the company
conceded the miner had black lung and chose to fight the claim on
other grounds.
When
clear pathology evidence did exist in cases reviewed by The Center,
it tended overwhelmingly to show that the doctors who had found black
lung — not Wheeler — were correct.
The
American Lung Association, NIOSH, the Labor Department and a paper
published by the American Thoracic Society say black lung usually can
be diagnosed with an X-ray, knowledge of the miner’s exposure to
dust and studies of lung function. Biopsies, which Wheeler insists
are “very safe,” are invasive, risky and usually unnecessary,
government officials and doctors said.
Still,
of the cases in which Wheeler submitted at least one negative
reading, miners or their surviving family members submitted evidence
from a biopsy or autopsy in more than 280 cases, a Center analysis
found. Contrary to Wheeler’s contentions, the pathology did not
resolve most cases. In about half, the tissue evidence proved
inconclusive or was disputed.
Of
the remaining cases, 75 percent revealed undisputed evidence of black
lung. In the other cases, the tissue did not show evidence of the
disease, but, as the law states, this doesn’t mean the miner didn’t
have black lung — only that it wasn’t present on the piece of
lung sampled.
In
the cases in which pathology showed Wheeler was wrong, other X-ray
readers saw black lung 80 percent of the time, and no interpretations
outside of Johns Hopkins existed in another 12 percent.
Most
times, then, only Wheeler and his Johns Hopkins colleagues failed to
see black lung.
Diagnosis
after death
Sometimes
miners had to die to prove they had black lung.
George
Keen worked 38 years in the mines and tried for 22 years to win
benefits. At least two physicians interpreted his X-rays and CT scans
as showing complicated black lung. Wheeler and his colleague Scott
read them as negative — probably tuberculosis, they said. Keen
lost.
Three
years after the most recent X-rays and CT scans read by Wheeler were
taken, Keen died. The company’s chosen pathologist agreed the
autopsy revealed complicated black lung.
John
Banks, who started loading coal by hand at 17, had multiple claims
denied. More than a half-dozen doctors saw black lung; Wheeler
suspected cancer. When Banks died, pathologists looking at his lung
tissue debated whether the disease had reached the complicated stage,
but both sides agreed: He had black lung.
Emily
Bolling suffered through much the same experience with her husband,
Owen, who spent most of the last six years of his life on oxygen but
wasn’t able to win benefits.
“They
would keep hiring more doctors and more doctors to read his X-rays,
and we had just one,” she said.
Wheeler
read a 2002 X-ray as negative. Owen died in 2003, and two
pathologists found that the autopsy showed black lung, allowing Emily
to win her widow’s claim. “It seems awful, but that’s what it
took,” she said recently. “It’s just wrong.”
Illene
Barr is trying to win benefits following the 2011 death of her
husband, Junior, who worked 33 years doing some of the dustiest jobs
in the mines. In his final years, his health progressively worsened.
“He loved to do things around the house,” Illene recalled. “He
had a garden. But he became so short-winded he couldn’t do any of
that. He ended up basically just sitting on the deck.”
He
lost claims in 2008 and 2010 after Wheeler read X-rays as negative,
saying histoplasmosis was much more likely.
“We
just couldn’t believe that it was happening,” Illene said.
Four
months after Wheeler’s most recent opinion that Junior likely was
suffering from the bird-and-bat-dropping disease, he died.
Pathologists for both sides saw black lung on the autopsy. Illene’s
benefits case is pending.
The
Wheeler standard
Wheeler
learned the strict criteria he applies from his mentor, Dr. Russell
Morgan, a revered figure at Johns Hopkins. In the early 1970s, Morgan
helped NIOSH develop the test to qualify as a “B reader” — a
doctor certified to read X-rays for black lung and similar diseases.
Wheeler served as one of his test subjects. The radiology department
bears Morgan’s name, and he went on to become dean of the medical
school.
Morgan
testified for companies defending a wave of lawsuits over
asbestos-related disease. Wheeler testified before Congress in 1984,
arguing that false asbestos claims were rampant and that plaintiffs
should prove their cases by undergoing a biopsy. He asserted that
similar problems existed in the black lung compensation system.
There
is general acknowledgement now that X-ray evidence was misused in
some asbestos claims. The black lung benefits system of today,
however, is a different universe.
In
some asbestos claims, plaintiffs won large verdicts or settlements,
and lawyers got rich. For black lung, the payouts are comparatively
meager — the maximum monthly payment, for miners with three or more
dependents, is about $1,250 — and few lawyers will take cases
because the odds of winning and ultimate compensation are low.
Settlements are not allowed, and miners have to prove total
disability caused by black lung, not just show a minimally positive
X-ray.
Wheeler
continues to express concerns similar to those he voiced in 1984. “It
comes down to ethics,” Wheeler said. “If you think it’s
appropriate for somebody with sarcoid to be paid for [black lung]
because he has masses and nodules — do you think that’s
appropriate? I don’t think so.”
After
Morgan’s death, Wheeler took over the “Pneumoconiosis Section.”
Asked if he viewed himself as the coal industry’s go-to
radiologist, Wheeler said: “Dr. Morgan was the go-to guy. … I’ve
replaced him … in the pneumoconiosis section, yes. … I can view
myself as the doctor for a number of companies, not just coal
companies.”
In
depositions and during the recent interview, Wheeler has insisted he
is relying on the criteria Morgan taught, praising his predecessor as
an innovator and genius. His criteria, however, do not comport with
mainstream views on black lung.
“When
you take this very strict view, where you put in all these rules,
none of which are a hundred percent, what will happen is you’ll
wind up excluding people that have the disease,” NIOSH’s Weissman
said.
According
to medical literature and experts consulted by the Center, black lung
does not always fit the narrow appearance Wheeler requires. Shown a
text, for example, that says the disease may affect one lung more
than the other, Wheeler said: “I don’t know where they get this
idea. … It’s not what Dr. Morgan taught me.”
In
fact, the statement comes from the standards established in 1979 by
the College of American Pathologists. The report was compiled by a
group of eminent doctors, including some who have testified regularly
for coal companies.
Doctors
interviewed by the Center said they had seen many cases of black lung
that did not fit Wheeler’s standards. “You’ll see a variety of
different presentations,” said Dr. Daniel Henry, the chair of the
American College of Radiology’s task force on black lung and
similar diseases. “The image can vary.”
In
one case decided in 2011, NIOSH got involved at the request of the
doctor who examined the miner for the Labor Department. Multiple
doctors had diagnosed complicated black lung, but Wheeler had read
X-rays as negative. The spots on the X-rays didn’t follow the
pattern he wanted to see, he’d said; histoplasmosis was more
likely.
Two
NIOSH readers, however, saw complicated black lung on the film, and
Weissman wrote a letter saying Wheeler’s views “are not
consistent with a considerable body of published scientific
literature by NIOSH.” The miner won his case.
Assumptions
and ‘bias’
A
pair of assumptions shapes Wheeler’s views in ways that some judges
and government officials have found troubling.
Former
miner Gary Stacy’s struggle for benefits lays bare the effects of
these beliefs.
When
he filed for benefits in 2005, Stacy was only 39 years old, yet three
doctors believed his X-rays and CT scans showed complicated black
lung. He had worked for almost 20 years underground and had never
smoked.
Wheeler,
however, read two X-rays as negative. He wrote that Stacy was “quite
young” to have complicated black lung, especially since the 1969
law required federal inspectors to police dust levels. Histoplasmosis
was much more likely, Wheeler thought.
A
judge denied Stacy’s claim in 2008, and it would take years of
fighting and a rapid decline in his breathing before he won.
In
reaching his conclusions about the cause of the large masses in
Stacy’s lungs, Wheeler drew upon beliefs that pervade his opinions:
Improved conditions in mines should make complicated black lung rare;
whereas, histoplasmosis is endemic in coal mining areas.
In
case after case, Wheeler has said complicated black lung was found
primarily in “drillers working unprotected during and prior to
World War II.”
Wheeler’s
contention contradicts a series of published studies by NIOSH
researchers showing that the prevalence of black lung actually has
increased since the late 1990s and that the complicated form
increasingly is affecting younger miners. Wheeler contends these
peer-reviewed studies aren’t conclusive because they have not been
confirmed by pathology.
Gary
Stacy is the kind of miner NIOSH says it now sees more often. Just 47
today, he appears trim and healthy, but a few minutes of conversation
reveal a different reality. His sentences are interrupted by hoarse
gasps for breath.
Stacy
now undergoes pulmonary rehabilitation to prepare for a lung
transplant. As his illness worsened, the evidence became
overwhelming, and his employer agreed to pay benefits.
The
fact that nothing in Stacy’s medical history indicated he’d
suffered from histoplasmosis or tuberculosis didn’t prevent
Wheeler’s readings from being credited in the 2008 denial. Someone
could be exposed, show no symptoms and still develop masses that
remain after the infection has fizzled out, Wheeler often has said.
This
is theoretically possible, said doctors consulted by the Center,
including an expert on histoplasmosis at the Centers for Disease
Control and Prevention. But, doctors noted, in cases with masses as
large as the ones Wheeler often sees on film, the patient likely
would show symptoms and have some record of the disease in his
medical history.
NIOSH’s
Weissman said the two diseases should rarely be confused on film.
“The appearance of [black lung] is different from the typical
appearance of … histoplasmosis,” he said. “That shouldn’t be
hard, in general, to make that differentiation.”
 |
| Black lung-advanced Steve Day |
Wheeler’s
main alternative suggestion once was tuberculosis, but he has
switched to suggesting histoplasmosis more often. “Well, initially,
I thought TB was … causing these things,” he said in an
interview. Yet many of those cases, he now believes, “very likely
were [histoplasmosis].”
Could
he be wrong again? “I could be,” he said. “But I’d like to be
proven wrong with biopsies.”
In
written opinions, judges have said Wheeler’s assumptions seem to
have “affected his objectivity” and “inappropriately colored
his readings.” Another wrote in 2011 that Wheeler had a “bias
against a finding of complicated [black lung] in ‘young’
individuals.”
In
some cases, judges have questioned Wheeler’s demands for biopsy
proof and his speculative suggestions of other diseases. “The
reasonable inference to be drawn from Dr. Wheeler’s report and
testimony is that he does not accept a diagnosis of [black lung]
based on x-ray or CT scan alone,” one judge wrote in 2010.
Another
judge succinctly summarized Wheeler’s opinion: “I don’t know
what this is, but I know it’s not [black lung].”
Steve
Day, 67 F. Brian Ferguson/Center for Public Integrity
Scraping
to get by, struggling to breathe
Steve
Day’s wife, Nyoka, sleeps lightly. Most nights, they re-enact the
same scene.
Steve
sleeps upright in a recliner; if he lies flat, he starts to
suffocate. Nyoka lies in bed in the next room over, listening to his
breath and the hiss of the machine pumping oxygen through a tube in
his nose. She waits for the sound — a faint gasp.
“I
hurry in here, and I bend him over and say, ‘Steve, cough,’ ”
she said. “He’ll try and get by without having to cough because
it hurts. And I make him cough. I’ll scream at him, ‘Cough!’ ”
What
finally comes up is often black. They’ve made it through another
night.
This
is not the life they envisioned when Steve returned from Vietnam and
they eloped. Both of their fathers had worked in the mines, and both
had black lung. Before they got married, Steve made Nyoka a promise:
He’d never go to work in the mines.
It
wasn’t long before he changed his mind, persuaded by his father.
“He said that’s the only way you can make good money,” Steve
recalled of the job that, in good years, earned him as much as
$55,000 or $60,000. He worked just about every job underground. For
much of his career, he ran a continuous mining machine, which rips
through coal and creates clouds of dust.
“When
he came out of the mines, all you could see was his lips, if he
licked them,” Nyoka recalled. “He was black except around his
eyes.”
After
33 years in the mines, he thought the cause of his breathing problems
was obvious. So did his doctor, who is treating him for black lung.
The
reports from Johns Hopkins floored Steve and Nyoka. There was nothing
in his medical records to suggest he’d ever had tuberculosis or
histoplasmosis, let alone a case so severe that it left behind
multiple nodules and masses, including one occupying almost a third
of one of his lungs.
Steve
scowls at the mention of Wheeler’s name. “The more I talk about
him the madder I get,” he said. “And the madder I get, my blood
pressure shoots up.”
 |
| Steve Day and family |
Administrative
Law Judge Richard Stansell-Gamm determined, based on the opinions of
Wheeler and the pulmonologist who adopted most of Wheeler’s
findings, that Day had not proven he had black lung. The judge didn’t
come to any conclusions about what caused Day’s severe illness.
He
lost his case on May 31, 2011, and, three days later, the Labor
Department sent Day a letter demanding $46,433.50. The department had
originally awarded Day’s claim in 2005 and started paying benefits
from a trust fund because the company’s lawyers had appealed. Now
that the initial award was overturned, the department wanted
reimbursement for what it paid out during the six years it took for
the case to reach a conclusion.
The
department eventually waived the so-called “overpayment” after
Day submitted documentation showing he had to support, to varying
degrees, eight other people with only Social Security and a union
pension.
“Each
person of age tries to help but overall it isn’t enough to survive
on without borrowing,” he wrote the department. “It has been very
humiliating to have to do so, when everyone knows that I worked my
life away from my children and my wife, in order to end up on full
time oxygen for a company who isn’t (decent) enough to acknowledge
the damage ‘their’ job done to my body, my life, and my family.”
Day
has not given up hope of winning benefits, but, if he files again, he
could find himself again having to overcome the opinions of Wheeler
and his colleague at Johns Hopkins.
As
he almost always does, Wheeler testified in Day’s case that he
should undergo a biopsy. Parker, the former NIOSH official who
examined Day’s X-rays and CT scans, said he’d advise against a
biopsy because the risk of complications for someone with Day’s
level of disease is too great.
That
leaves just one way, in Wheeler’s opinion, to disprove him. Steve
and Nyoka have already discussed it. “I done told her, ‘If
something happens to me, have an autopsy done on my lungs,’ ”
Steve said.
Since
he lost his case, Day’s breathing has declined. He began full-time
oxygen a year ago, but decided against a lung transplant. At 67, with
his health problems, he likely would not be a good candidate.
Miners
have developed a crude measure for how damaged their lungs are based
on how upright they need to be to sleep.
“You
start out with one pillow,” Nyoka said. “Then you go to two
pillows. Then three pillows, and that’s supposed to be your top.
Well, he went through that, and he got to where he couldn’t
breathe. So he got in the recliner, and he’s just lived in that
recliner for …”
“Years,”
Steve interjected, staring out the window toward the tree-lined
hillside.
“And
now the recliner,” Nyoka said. “It’s not enough.”
Editor’s
note: Brian Ross and Matthew Mosk work for ABC News. Retired judge
Edward Miller’s daughter is employed by the network. The Center
contacted him before ABC News joined the reporting for this story.
