By Mike Tony

Link to the Article on Charleston Gazette-Mail

US Department of Labor Office of Workers’ Compensation Programs

Division of Coal Mine Workers’ Compensation 

BLACK LUNG BENEFITS IDENTIFICATION CARD 

It’s like trying to work with a pillow over your face, Thomas Culbertson said. 

“You can’t do it,” Culbertson says of the black lung disease that has beleaguered him for the past decade. “If you try to do anything strenuous, in 10 minutes you’re down there panting for breath.” 

Black lung isn’t the only preventable problem that has kept Culbertson, 68, of McDowell County from breathing easily after a mining career that spanned more than three decades. 

Nearly a decade after black lung forced him to retire early from the mines, Culbertson was surviving on free inhaler samples. He had to get them from a health clinic a roughly hour-long round trip away from his Maybeury home because he had no way to secure the benefits to which he was entitled as a federal black lung beneficiary. 

“I didn’t know from one month to the next if they were even going to have the samples the following month to give me,” Culbertson said. “And then if I didn’t, I didn’t know where I was going to get it or what I was going to do about when I can’t breathe.” 

So Culbertson did something the United Mine Workers of America union said will save both miners and taxpayers millions of dollars.

He sued the United States Department of Labor. 

Filed last year, Culbertson’s federal lawsuit demands the Department of Labor stop its practice of not providing an ID card to federal black lung beneficiaries who had previously received an award for black lung under a state workers’ compensation program. 

Now, the agency says black lung beneficiaries awarded benefits under a state workers’ compensation program will get a federally issued black lung benefits card. The card includes four key words — “no copay” and “no deductible” — and lists information for where providers should send bills and where beneficiaries should send reimbursement requests. 

Attorneys for Culbertson and the Department of Labor agreed to have the case dismissed earlier this month. 

“We applaud the [Department of Labor’s] updated policy to provide these miners with the medical card they should have had all along,” UMWA occupational health and safety administrator Josh Roberts said in an email. 

John Cline, a West Virginia attorney who has represented miners in black lung claims, called the Department of Labor’s notice “a very important and long overdue step.” 

“[The notice] will help clarify and expedite the process of determining liability when a miner has partial medical coverage from a state black lung award,” Cline said in an email. 

Culbertson had urged that the same medical cards sent to all federal black lung beneficiaries include just that in his lawsuit brought by Beckley-based attorney Sam Petsonk. 

A Department of Labor spokesman said the agency doesn’t comment on litigation. 

The Black Lung Benefits Act provides monthly payments and black lung-related medical benefits to coal miners disabled by the disease after contracting it on the job. Those benefits include most drugs prescribed for black lung treatment, hospital visits, pulmonary rehabilitation, doctor’s office calls and travel to the doctor, hospital, clinic or other medical facility for round trips of up to 200 miles. 

“The biggest value of having federal black lung benefits is the medical coverage,” Petsonk said in an email. 

Miner advocates say medical expenses that should have been covered by coal companies under federal law were instead billed to Medicare, private insurance or miners themselves because the miners lacked a card showing providers where to bill the federal black lung claim. 

Evan Smith, advocacy director at AppalReD Legal Aid, a Prestonburg, Kentucky-based nonprofit law firm, noted that miners have paid a 20% copay unnecessarily because they couldn’t guide providers on where they should have billed claims. 

“So you’ve got disabled miners spending more than they should, you’ve got costs being shifted to the public that should be borne by the industry, all because, number one, how complicated our health care system is, and, number two, that people were often not aware that they have an additional layer of coverage.” Smith said. 

Smith said most black lung benefit recipients have no attorney to guide them. 

“In my experience, many companies would not provide miners with proof of coverage without a specific request to do so,” said Wes Addington, executive director of Appalachian Citizens’ Law Center, a Whitesburg, Kentucky-based nonprofit law firm specializing in black lung and mine safety cases. 

Culbertson’s case has set up miners for better health outcomes. But it also has highlighted how daunting co-occurring benefit awards can be for black lung-afflicted miners reliant on them. 

“Too often coal companies or their insurance companies stay silent while Medicare or other insurance plans pay for treatment that is actually their responsibility,” Addington said. 

Culbertson had received an award of benefits from West Virginia’s Workers’ Compensation Office of Judges finding that he had partial black lung impairment. But, Culbertson said, the partial award didn’t pay pharmaceutical benefits. 

Nineteen months after Culbertson applied for federal black lung benefits, the Federal Black Lung Program issued a proposed decision and order awarding him benefits. 

But Extra Energy, Inc., the Princeton-based coal mining company that was to be responsible for the benefits, fought the decision, requesting a formal hearing before the Department of Labor’s administrative trial court. 

Nearly five years later and almost two years after the hearing, Culbertson is still waiting on a final decision. 

The Department of Labor typically pays claims while a miner waits for a hearing on the merits of their case and then goes after reimbursement from the responsible coal operator if the claim is upheld. 

But no federal ID card meant no billing guidance for Culbertson’s providers and prohibitive price tags for basic medical care. 

“When I’d go to get my inhalers, I’d call it in. They would refuse to pay for it,” Culbertson said. “They’d say, ‘Yeah, but you can pick it up if you want to pay $600 for a 30-day supply. I mean, who in the hell can do that?” 

National Institute for Occupational Safety and Health researchers have found that payers other than the Federal Black Lung Program 

– including taxpayers — paid hundreds of millions of dollars to cover the program’s primary payer claims in a 17-year span. 

The researchers found the Federal Black Lung Program paid less than two-thirds of the $668.8 million that providers collected from more than 75,000 Medicare claims from 1999 to 2016. Nearly a quarter-billion dollars were paid by other sources, including $207.1 million from Medicare (31%) and $38.5 million from beneficiaries themselves (5.8%). 

“That is several hundred million dollars in misallocated costs. At a minimum,” Petsonk said. “It could be the tip of the iceberg.” 

West Virginia has been at especially high risk for black lung beneficiaries covering their own medical expenses and taxpayers bearing misallocated cost burdens. 

More than one in every five Federal Black Lung Program primary payer beneficiaries were West Virginia residents, according to the study. West Virginia accounted for a higher share of beneficiaries than all other states except Pennsylvania. 

West Virginia is more reliant on black lung benefits than any other state in the nation. 

Black lung benefit disbursements totaled $38 million in West Virginia in fiscal year 2021 — far more than any other state and accounting for more than a fourth of all payments nationwide. 

West Virginia’s dependence on black lung benefits is likely to deepen because of a proliferation of more severe cases of the disease. 

Mining veterans and industry experts say miners are cutting into more surrounding rock as coal seams thin, increasing exposure to silica dust from the crushed rock and resulting in a rise in diseased lungs across Appalachia. 

National Institute for Occupational Safety and Health researchers found in a 2018 study that severe black lung in central Appalachia had reached its highest level since record-keeping began in the 1970s. The report published in the peer-reviewed American Journal of Public Health found that one in every 20 long-tenured underground miners in central Appalachia had black lung that had advanced to progressive massive fibrosis, a condition the researchers noted is “totally disabling.” 

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

State coverage issues Mine veterans like Culbertson wouldn’t have to rely on federal benefits if state black lung benefits were more accessible. 

Smith attributes that lack of accessibility to what he said has been “disproportionate influence” from the coal industry in legislatures of coal-producing states. 

Smith has seen a common pattern of clients that have lungs scarring present in coal worker’s pneumoconiosis (black lung disease) from mining in high dust levels also having chronic obstructive pulmonary disease (COPD). 

West Virginia’s definition of “occupational pneumoconiosis” in state code governing disability and death benefits does not include COPD. The federal definition does include COPD. 

Smith says the co-occurrence of those conditions allows insurance companies to contend that miner health expenses are due to COPD incidental to and not because of their exposure to mine dust. 

During their 2022 regular legislative session, a new committee formed to develop policy recommendations to revitalize West Virginia’s coal communities advanced a bill that would have allowed claimants to present their cases before the board even if no lung impairment has been shown following a pneumoconiosis diagnosis. 

In 2018, the state Supreme Court ruled that a coal miner was not entitled to a permanent partial disability award for occupational pneumoconiosis after pulmonary function studies found the miner had no impairment even after he was diagnosed with the disease. 

State law allows employees to apply for compensation within three years of the last continuous period of 60 days or more during which they were exposed to occupational black lung disease or within three years of a diagnosed impairment due to the disease. Dependents may also apply within two years of the worker’s death. 

The bill was identical to legislation that failed in committee in both the state House and Senate each of the previous three sessions. 

This time, House members showed bipartisan passion behind the legislation. 

Delegate Ed Evans, D-McDowell, choked up during a committee meeting while recalling that black lung rendered his grandfather incapable of walking from one side of his yard to the other. 

“Those of us who live in the coalfields know the demon of black lung,” Evans said. 

“[A]nything we can do to help (people with black lung], it’s long past time we should have been doing it,” Delegate Tony Paynter, R Wyoming, said. 

It didn’t matter. The bill stalled in the House Judiciary Committee. 

For the fifth straight year, legislation led in sponsorship by Sen. Ron Stollings, D-Boone, that would have established a state black lung fund died in the Senate. 

The measure would have been supported by an increased severance tax on natural resources, including coal. Any claimant exposed to dust on the job for 15 years would have been entitled to monthly payments of $200 and $15 more for each additional year of exposure on top of any already existing disability or federal black lung award. 

The West Virginia Legislature has accommodated the state’s coal industry. 

It approved a steam coal severance tax reduction from 5% to 3% enacted in 2019 that the state Department of Revenue estimated would cost the state $64.1 million annually. Also that year, state lawmakers approved an annual $12.5 million-per-year tax break for the Pleasants Power Plant in Willow Island, only for the plant to be slated in March for sale or deactivation by June 2023. 

In 2020, the Legislature enacted a law encouraging in-state utility-scale solar development that nonetheless barred displacing then 

current levels of coal-fired generation capacity. 

“It’s just a historical fact that the coal industry has had a lot of power, especially at the state level, in the states where coal is mined,” Smith said. 

Culbertson carries with him memories of his fellow miners complaining about dust being so thick they couldn’t see. 

Now, he also carries his federally issued benefits ID card that he got earlier this month. It doesn’t make up for lost time or lost breath. But it does ensure the breath he can still muster goes not just toward surviving but living. 

“It’s going to make my life easier because I don’t have to worry so much from one month to the next about if I’m going to be able to breathe the next month or not,” Culbertson said. 

“Coal companies have gotten off the hook for decades on yet another massive category of human harms caused by their business,” Petsonk said. “But no longer.” 

Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or mtony@hdmediallc.com. Follow @Mike_Tony on Twitter. 

Mike Tony 

Environment and Energy Reporter 

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