Breathless and Burdened

Published — November 6, 2014

Years after black lung claim was wrongly denied, coal miner gets his due

Steve Day, 67 F. Brian Ferguson/Center for Public Integrity


It took more than nine years of fighting and, ultimately, his death, but coal miner Steve Day has won his claim for federal black lung benefits, assuring his family a modest but much-needed monthly check.

Day’s initial claim for benefits, filed in 2005, was wrongfully denied primarily because of reports and testimony by doctors at the Johns Hopkins Medical Institutions, which had become the coal industry’s go-to institution for obtaining negative readings of X-rays to help defeat sick miners’ cases.

But, in a rare move on Oct. 23, Patriot Coal agreed to stop fighting Day and his widow and to begin paying her $947.70 a month, as well as about $40,000 in benefits that had accumulated over the time it contested the claim. The company’s decision is uncommon in a system in which coal giants typically wage protracted battles to avoid paying benefits, even when miners are extremely ill and are being treated for black lung.

Patriot’s decision to concede came two weeks after BuzzFeed News told Day’s story, detailing how his autopsy definitively showed that the negative readings in his case by doctors at Johns Hopkins were wrong.

“I think he would be very happy now,” Day’s daughter Patience, 30, said of her father. “I just think it’s a shame that it took his death to open people’s eyes.”

Patriot, which now owns the company that employed Day for more than 33 years, declined an interview request and would not say why it chose to concede after years of fighting. Instead, it issued a statement that said, “We believe the Company’s actions in this case were appropriate and consistent with the medical evidence presented at the time.”

The lawyer representing the company, Paul Frampton of the firm Bowles Rice LLP, did not respond to repeated interview requests. Frampton has represented coal companies in many black lung cases, including Day’s earlier claim.

Day’s case was emblematic of the struggles faced by many other coal miners. A Center for Public Integrity investigation, conducted in partnership with ABC News, revealed that, in more than 1,500 cases decided since 2000, the leader of the Johns Hopkins unit, Dr. Paul Wheeler, never once found a case of severe black lung, even as other doctors looking at the same X-rays saw this advanced form of the disease in 390 cases. Autopsies or biopsies, which are rarely available in black lung claims, have proven Wheeler wrong in more than 100 cases.

Many of the criteria Wheeler applies when evaluating films are at odds with medical literature and the views of other leading doctors, yet judges often have deferred to his impressive credentials, contributing to denials of many miners’ claims.

After Wheeler’s record came to light, Johns Hopkins suspended its black lung X-ray reading program and said it was beginning an internal review. That announcement came on Nov. 1, 2013. Now, more than a year later, a spokesperson said the review was ongoing but refused to provide any further details.

The spokesperson also ignored an interview request and issued essentially the same statement that Johns Hopkins has been making for months: “Our review of the [black lung X-ray reading] program is ongoing and has proceeded as rapidly as possible. I can assure you that the review process has been thorough and that Johns Hopkins takes concerns about the … program very seriously.”

This year, the U.S. Department of Labor issued a bulletin instructing agency officials not to credit Wheeler’s opinions unless a company rebutted the evidence from the CPI-ABC investigation. The department also notified more than 1,000 miners that their claims may have been incorrectly denied because of Wheeler’s readings and told them they might be able to file a new claim for benefits.

That is what Day did in November 2013, before the government outreach. He died this July at age 67, still awaiting a decision in his case.

When he filed his initial claim in 2005, a Labor Department claims examiner awarded benefits, but the company appealed. In 2011, an administrative law judge reversed the award and denied the claim.

This denial relied primarily on Wheeler’s reports and testimony. More than half a dozen other doctors believed that Day had black lung. Even the pulmonologist who examined him on behalf of the company initially thought he had the disease, but he changed his mind after receiving Wheeler’s reports on the X-rays and CT scan.

After the loss, Day and his family struggled to pay monthly bills, sometimes resorting to loans from neighbors or relatives. The entire family — Steve and his wife, two daughters, a son-in-law, and two grandsons — lived in a small house, and each person pitched in.

The long-awaited benefits payments will help with monthly expenses, including medical bills for Steve’s wife, Nyoka, who suffers from rheumatoid arthritis and a disease that causes her body to retain too much iron. She is currently hospitalized.

“I wish my Dad was here to see it and enjoy what was rightly his,” Patience said. He’d be pleased, she added, not just at the vindication in his own case but also the hope his victory could offer other coal miners.

“He wanted his story to be able to make a difference,” Patience said. “That’s our hope too. If his story can prevent other families going through what we did, it paid off. However, we’ve lost Dad, and that’s a pretty big price.”

Chris Hamby, a former reporter with the Center for Public Integrity, now works for BuzzFeed.

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