Ted Latusek has black lung disease. For almost two decades, his breathing has been so bad he’s been considered totally disabled. Even his former employer, the coal giant Consol Energy, does not dispute those points.
Nineteen years after he first filed for federal black lung benefits, however, his case remains unresolved. What’s really causing his impairment, doctors testifying for Consol contend, is a completely different and unrelated disease. To win his case, the former miner must show that his disability is caused by black lung.
Though parts of his lungs show the dark nodules typical of the classic form of black lung, all doctors agree that his biggest problem is elsewhere, in the parts of his lungs that show severe scarring with a different pattern.
His case file, spread in piles, covers a conference table, but all of the medical reports, depositions, hearings, briefs and rulings center on one question: What caused the abnormal scarring that has consumed large portions of his lungs?
The fight over the answer to that question goes to the heart of the newest battle in a longstanding war between companies and miners. Latusek’s legal tussle is the signal case in the latest effort by the coal industry to deny emerging scientific evidence and contain its liabilities, a strategy that has played out repeatedly over more than a century and locked multitudes of miners out of the benefits system, the Center for Public Integrity found as part of the yearlong investigation, "Breathless and Burdened."
Consol has hired radiologists, pathologists, pulmonologists and a statistician to examine Latusek, write piles of reports and attack a growing body of medical literature. His disease, they maintain, is a rare illness that appears in the general population and causes lung damage with the appearance seen in Latusek. The cause is unknown, but, they say, it definitely isn’t coal mine dust.
Yet medical evidence increasingly has shown his pattern of scarring to be a previously unrecognized form of black lung.
Broad recognition of the illness’ connection to coal mine dust could have significant financial implications for coal companies. The Center identified more than 380 benefits cases decided since 2000 in which the miner had evidence of this atypical presentation, and studies have shown the disease pattern to be present in at least 15 percent of some groups of miners examined.
Since Latusek first filed his claim in 1994, research increasingly has shown that coal and silica — the toxic mineral in much of the rock in mines — can cause the pattern of scarring he has. Government researchers at the National Institute for Occupational Safety and Health (NIOSH) and the National Institutes of Health (NIH), as well as other independent doctors, have linked the pattern to coal mining.
“It’s certainly related to their work,” said David Weissman, head of NIOSH’s division of respiratory disease studies. “We’re confident of that.”
Yet, while other variants of black lung are defined explicitly in Labor Department regulations, Latusek’s form is not, and doctors paid by the coal industry continue to testify that there is no evidence of any connection between mining and this form of disease. This leaves the complex medical issue to be argued case by case in the benefits system, which is often ill-equipped to address emerging science and typically favors coal companies and the well-paid consulting doctors they enlist.
A Labor Department spokesman said the agency doesn’t think a regulation formally recognizing the form of disease as a type of black lung is necessary. Current rules, the spokesman noted, allow miners to attempt to prove a relationship between their work and this variety of illness.
Experts interviewed by the Center, however, argued that explicitly stating such a relationship would lessen miners’ burden, pointing to a previous rulemaking as a model. In hundreds of cases reviewed by the Center, miners with a disease pattern like Latusek’s have faced particular challenges in proving their cases.
Latusek, a coal miner’s son who grew up in an area of northern West Virginia dominated by Consol, has won four times before an administrative law judge, but appeals courts have vacated or reversed the decision each time.
Consol did not respond to requests for comment.
While courts have grappled with the complexities his case presents, Latusek’s health has deteriorated. He has gone on oxygen and endured a lung transplant. The doctor who originally treated him on referral from Consol has testified against him twice, and many of the industry’s go-to consultants have weighed in.
Yet he and his lawyer — the daughter of a coal miner who has toiled more than half her career on Latusek’s case despite rules barring her from collecting a cent in fees until the case closes — press on.
“I know my case is going to set a precedent,” Latusek said.