Workers’ Compensation Reform Complicating the Black Lung Epidemic

Daniel Boswell – Suppose your state receives immense benefits from the back-breaking work of its citizens in one of its flagship industries. One would think that the state would make the healthcare options for those workers a priority. However, this is not the case in the Commonwealth of Kentucky.

Kentucky remains at the center of the growing black lung epidemic, which currently affects one in five coal miners in the Bluegrass State. Yet, in the face of a crisis reaching rates higher than ever charted before, Kentucky Governor Matt Bevin signed House Bill 2 (HB2) into law in March of 2018. Black lung, which is primarily caused by inhaling coal dust over a long period of time, is normally detected through a chest X-ray. The workers compensation bill permits only pulmonologists to analyze X-rays of Kentucky miners for workers compensation claims, precluding federally certified radiologists from doing so. In essence, the law cuts the number of physicians in the state that are permitted to judge X-rays for benefit claims from 11 to 5. This is important because, due to dueling assessments in the federal black lung compensation program, the state compensation route has traditionally been quicker and more generous for miners. Interestingly, as reported by NPR last spring, of the now five pulmonologists eligible to diagnose the disease in order to settle claims, at least three have worked for coal companies or their insurers in the past. Adam Koenig, the sponsor for the bill in Kentucky’s House of Representatives has expressed his belief that the pulmonologists will not be conflicted by their work for the coal companies. Still, the move begs the question, was there even a medical reason behind the change?

Lawmakers and the Kentucky Coal Association alike cited consistency concerns as justification for the bill. That is, HB2 was meant to address concerns that miners seeking workers’ compensation benefits are facing tougher testing requirements than others with similar lung conditions. There is a belief among the bill’s proponents that pulmonologists are better equipped to analyze black lung scans due to radiologists more general evaluations. Some believe that radiologists and pulmonologists may not read X-rays the same way, which leads to physicians working on behalf of coal companies assessing potential black lung claims more conservatively than those physicians working on behalf of miners. This is crucial to the issue, as coal companies—more specifically, their insurers—pay out black lung compensation benefits. Many others believe that the sole purpose of the bill was to decrease workers compensation claims piercing the pockets of the coal companies by way of eliminating doctors seen as miner-friendly. When you consider the lobbying power of big coal companies in Frankfort—the state’s capital—and the 40 percent rise of state black lung claims since 2014, the bill makes a world of sense to its proponents.

While HB2 passed with a 55-39 vote, the law is not void of detractors. Groups such as the Centers for Diseases Control (CDC) and The American College of Radiologists have been highly critical of the law from a medical perspective. According to members of the CDC, there is no evidence to suggest that the newly disqualified radiologists—who specialize in X-rays—are in fact less qualified than pulmonologists to evaluate black lung claims. The confusion and distaste expressed by the medical community stems from the effect that the state’s political climate could have on patient’s with black lung disease. Triggered by particles of coal dust that are inhaled causing the lungs to scar, black lung is thought of as a slow death by suffocation. Thus, medical professionals’ concern with HB2 is this: miners across the state will suffer and eventually die waiting for federal workers’ compensation benefits.

Those in the medical profession are not alone in dispute of the 2018 legislation. On November 19, 2018, two Kentucky representatives pre-filed a bipartisan bill (BR 163) to repeal HB2. BR 163’s co-sponsor, Representative Angie Hatton has notably condemned proponents of the 2017 law for turning their backs on the state’s miners when their help was needed most. While Representative Koenig recently claimed there was no evidence to say the law has been ineffective, there are currently at least 75 black lung cases awaiting a qualified pulmonologist’s attention, according to a Kentucky workers’ compensation judge.

The proposed bill is scheduled to be discussed at the beginning of the 2019 session.