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Black Lung Update

Published on: 7/23/2004

July 23, 2004

The Virginia Court of Appeals has issued a decision in the case of El Paso Coal Corporation/Coastal Coal Company, LLC v. Donald Clark, 2004 WL 1314832 (Va.App.)(June 15, 2004), which upheld a Virginia Workers' Compensation Commission opinion adopting a position on occupational disease claims alleging pneumoconiosis (or black lung) which is unfavorable to employers and their insurance carriers.

The Clark case stands for the proposition that b-readings of original x-ray films in state black lung claims are more persuasive medical evidence and are entitled to greater weight than b-readings of copies of those same x-rays. This does not sound like an unreasonable position and usually does not translate into any prejudice to the employer/carrier in defending claims. One exception, however, is with claims that proceed on NIOSH x-ray films. NIOSH stands for National Institute of Safety and Health. It promotes studies of coal mines and the effect of coal dust on coal miners. It provides opportunities for coal miners to obtain chest x-rays free of charge. In exchange, it offers to have its own b-readers interpret the films for the coal miners and advise them if they suffer from pneumoconiosis. NIOSH keeps the original x-ray films at its facility in Morgantown, West Virginia . It will not release the original films even with a subpoena or medical release. There is a provision of federal law that protects these films. The original films may only be read at the NIOSH facility. At times, a coal miner will file for state black lung benefits relying on the b-reading NIOSH has provided of the original film.

Normally, in defending a state black lung claim, the defendants will subpoena the x-ray film upon which the claimant relies and have it read by b-readers of their own choice. The Virginia Workers' Compensation Act limits each party to three such b-readings. Therefore, the defendants will obtain three negative b-readings of the claimant's x-ray film and will submit those to the Commission in support of their defense of the claim. The claimant also will obtain two additional b-readings of the film, in addition to the b-reading he uses to file the initial claim. When each party has obtained three b-readings of the x-ray, the Commission usually sends the x-ray film to the Pulmonary Committee for a "tie-breaking" reading. The Pulmonary Committee is a conservative panel of three b-readers appointed by the Commission to assist the Commission in interpreting chest x-ray films in state black lung claims. In the alternative, the Act allows the claimant simply to agree to be bound by the Pulmonary Committee's b-reading without going to the expense of developing two additional b-readings.

When the claimant relies on a NIOSH b-reading, the original b-reading upon which the claimant relies is a b-reading of the original NIOSH chest x-ray. However, NIOSH will not release the original film to the defendants or to the Pulmonary Committee for further interpretation. It will only provide a copy of the film to the defendants or the Pulmonary Committee. In such a case, the defendants are only able to obtain b-readings of the copy of the film. Additionally, the Pulmonary Committee will not read a copy of an x-ray film because the film quality is deemed too poor to read. Therefore, if the film is sent to the Pulmonary Committee for a tie-breaking reading or because the claimant has agreed to be bound by the Pulmonary Committee's reading of the x-ray, the Pulmonary Committee will decline to read the copy of the NIOSH film. Traditionally, this has resulted in a dismissal of the claim because the remaining evidence usually will consist of three negative b-readings of the film copy submitted by the defendant and three positive b-readings submitted by the claimant (one interpretation of the original NIOSH film and two interpretations of a copy of the film). In the past, the Commission has deemed this evidence to be in equipoise, in otherwords, the evidence is balanced and does not preponderate in support of the claimant. However, in the Clark case, the Court of Appeals affirmed a decision by the full Commission which found in favor of the claimant because two of the claimant's b-readings in that case were b-readings of the original NIOSH x-ray film. These b-readings were deemed to hold greater evidentiary value (since they were readings of the original film as opposed to a copy of the film) and so the evidence was deemed to preponderate in the claimant's favor and the claim was awarded.

The problem with this decision is that in cases where the claimant relies on a NIOSH film, the defendants will be forced to locate certified b-readers to travel to the NIOSH facility in Morgantown, WV, to read the original x-ray film in order to obtain medical evidence as compelling as that submitted by the claimant. This can be either impossible or cost prohibitive. The Clark decision is not a good decision for the employer and carrier, and carriers and their defense attorneys will need to react accordingly. In future cases, we plan to object to the claimant's reliance on NIOSH b-readings from the outset of the claim. We will argue that the defendants are denied substantive and procedural due process when the evidence upon which the claimant relies is not readily available to the defendants for cross-examination by b-readers of the defendants' choosing without undue and unreasonable expense.