The 2nd meeting of the Interim Joint Committee on Labor and Industry was held on Thursday, October 18, 2001, at 10:00 AM, in Room 131 of the Capitol Annex. Senator Katie Stine, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Katie Stine, Co-Chair; Representative J. R. Gray, Co-Chair; Senators Dick Adams, Walter Blevins, David Boswell, Julie Denton, Bob Jackson, Alice Kerr, Joey Pendleton, and Richard Roeding; Representatives Charlie Hoffman, Dennis Horlander, Joni Jenkins, Stan Lee, Russ Mobley, Rick Nelson, Stephen Nunn, Jim Stewart, Johnnie Turner, and Brent Yonts.
Guests: Sheila Lowther, Chief Administrative Law Judge, Department of Workers’ Claims; Dr. Art Lieber, Radiologist and “B” Reader, and Dr. Nausherman Burki, Pulmonologist, University of Kentucky; Dr. Antara Mallampalli, Pulmonologist, University of Louisville; Dwight T. Lovan, Chairman, Kentucky Workers’ Compensation Board; Robert J. Smith, Commissioner, Bureau of Employment Programs, Charleston, West Virginia.
LRC Staff: Linda Bussell, CSA; Adanna Hydes, Melvin LeCompte, Betty Davis, and Reni Krey.
Senator Stine recognized Representative Gray who informed the members of Representative Butler’s absence because of Mrs. Butler’s serious illness, and he requested a moment of silence in honor of the Butler family.
A motion was made by Representative Gray and seconded by Representative Nunn to approve the minutes from the previous meeting. The minutes were adopted by voice vote.
Following a brief preview of the agenda, Senator Stine introduced Ken Christiansen, State Relations Executive, National Council on Compensation Insurance (NCCI). NCCI is a non-profit organization that represents carriers before state regulators and legislatures. NCCI is funded by insurance carriers who write workers’ compensation insurance policies. Following the September 11 terrorist attack on America, the NCCI president and CEO prohibited employees from displaying American flags in their offices on the national day of mourning and prayer. Senator Stine deferred to Representative Gray who read the letter he sent to Mr. Christiansen a week prior to the meeting which detailed his dismay at the decision and which also requested that Mr. Christiansen appear before the committee to provide an explanation.
Mr. Christiansen stated that the decision was wrong and that the president and CEO had resigned at the request of the board. On behalf of the committee, Representative Gray accepted Mr. Christiansen’s condolences and apology.
Senator Stine introduced Sheila Lowther, Chief Administrative Law Judge, Department of Workers’ Claims (DOWC); Dr. Art Lieber, Radiologist and “B” Reader, and Dr. Nausherman Burki, Pulmonologist, University of Kentucky; and Dr. Antara Mallampalli, Pulmonologist, University of Louisville, to discuss diagnosis and determination of impairment resulting from coal workers’ pneumoconiosis (black lung).
Judge Lowther provided a brief overview of procedures applicable to pulmonary evaluations required by KRS 342.315. House Bill 1, enacted in 1996, required the department to schedule medical evaluations of litigants in black lung and injury cases at the University of Kentucky and the University of Louisville. Since 1997, approximately 900 evaluations have been performed in black lung claims. Originally the protocol in those evaluations provided that the first step was a chest x-ray. If the x-ray was interpreted as negative, indicating that there was no evidence of an occupational lung disease, the evaluation was terminated at that point without proceeding to a medical evaluation and pulmonary function studies. She said the protocol was changed in October 2000. Judge Lowther said HB 1 provided a four year window for reopening of claims. She explained that the window expired December 12, 2000 and in anticipation of receiving an unusually high number of black lung claims in which there had already been an adjudication and determination that the coal miner did have occupational pneumoconiosis, the universities were asked to change the protocol to provide a full evaluation in those claims. Judge Lowther provided a handout which contained statistical results of the medical evaluations. Senator Stine asked Judge Lowther if the department made any effort to apprise the legislature about the October change in protocol. Judge Lowther responded that she did not know.
Dr. Lieber explained that the International Labor Organization classification (ILO) system classifies chest x-rays according to shape, location, size, and concentration in one area, called profusion.
At the request of Senator Boswell, Dr. Lieber explained that since there are no features on the chest radiograph that are absolutely diagnostic or pathomnemonic of the disease, other tests are required.
Dr. Lieber said that the computed tomography (CT) scan is a much more sensitive test but is not used routinely for classifying pneumoconiosis or black lung because it is more expensive. He said CT scans can be used to settle a dispute as to whether an x-ray is normal or abnormal.
Dr. Nausherman Burki said after a patient has a chest x-ray and a physical examination with pulmonary function tests, these findings along with the medical history are reviewed to determine whether there is black lung and whether there is impairment of lung function. If there is an impairment of lung function, he said AMA guidelines are utilized to determine the degree of lung impairment.
Senator Stine asked Dr. Mallampalli to elaborate on the algorithm she had provided to the committee and asked her if she thought that it was the best method of diagnosing pneumoconiosis. Dr. Mallampalli said that the algorithm was developed by the department and that “B” Readers are mandated to follow it as outlined. She said for the reasons Dr. Lieber stated, the chest x-ray alone is not an adequate diagnostic tool and does not give an indication of functional impairment. She said the spirometry test is one objective way to assess pulmonary impairment and that she felt it was appropriate to include it in the initial part of the evaluation.
Senator Stine asked the panel of doctors if it was possible to tell the difference between the effects of smoking and the effect of exposure to coal dust. Dr. Burki said that in his opinion, it is possible to determine the cause if one looks at the whole picture. He gave the example of the never-smoking miner with an abnormal chest x-ray and abnormal pulmonary function test, ascribing the abnormality to coal dust exposure. In contrast he said they frequently see miners with long smoking histories, who have a very minimally abnormal chest x-ray, and abnormal pulmonary function test, in which case he would say the abnormality is primarily due to cigarette smoke. He said the problem in making a determination occurs when there is a miner who has an abnormal chest x-ray consistent with pneumoconiosis, a long smoking history, and has abnormal pulmonary function tests. He said the available data states that even if that individual had never been exposed to coal dust, it is likely that the pulmonary function test would have been abnormal to a certain degree, making it possible to ascribe the likely cause of the abnormality. He said, however, that it is not possible to determine that there is absolutely no contribution from the coal dust. Additionally he said that although CT scans provide more detail, there is no international classification for CT scans as for chest x-rays and without a standard to go by, it would be impossible to assess the degree of the abnormality.
Dr. Mallampalli added that CT scan abnormalities do not correlate with functional abnormalities. Dr. Mallampalli said assessment as to the cause of a miner’s impairment must be based on the medical literature. The literature suggests that in simple coal workers’ pneumoconiosis, x-ray abnormalities are not associated with significant pulmonary impairment. She said long term exposure to dust can cause industrial bronchitis with symptoms of cough, or excessive phlegm production but it does not cause significant air flow obstruction. Complicated pneumoconiosis is associated with both obstructive and restrictive impairment.
Senator Stine asked the panel to distinguish between obstructive and restrictive impairment. Dr. Burki explained that industrial bronchitis may not produce an abnormality on a chest x-ray and a patient may only have mild obstruction. All other pneumoconioses which are significant enough to affect lung function produce a restrictive defect whereas cigarette smoking produces an obstructive defect. Dr. Mallampalli added that in making the distinction between obstructive and restrictive, the measure of lung volumes, which is part of the pulmonary function tests, following the use of a bronchodilator, is the best way to distinguish.
Representative Gray asked the panel how the general public can be assured that the medical community can be objective in distinguishing between impairment caused by smoking and that of coal dust exposure. Both Drs. Burki and Mallampalli agreed that significant indicators exist in making that distinction and that the evidence gathered from x-rays, pulmonary function tests, and medical histories was not subjective data.
In response to questions by Senator Adams, the doctors said that the univesities’ x-ray kilovoltage complies with federal guidelines.
Senator Adams, referring to the November 3, 1997 deposition taken in a workers’ compensation claim, noted that a radiologist for the University of Kentucky stated that the standard used by the university did not comply with federal requirements because the kilovoltage used by the university were higher than those recommended by federal black lung regulations. Dr. Lieber acknowledged that Dr. Woodring, was with the University of Kentucky in 1997 as a “B” Reader but is no longer on the University’s staff, and although not familiar with the deposition to which Senator Adams was referring, stated that the University of Kentucky was in compliance with federal guidelines.
Senator Adams asked Dr. Burki and Dr. Mallampalli if they had any preconceived notions of how many years a miner smokes cigarettes before they would assess the primary cause of the disability being attributed to cigarette smoking. Dr. Mallampalli said she did not have a specific cutoff but said available literature points out the more exposure to cigarette smoking, the more effect on pulmonary function. Dr. Burki added that each subject responds differently to cigarette smoking. In addition he said cigarette smoking causes an obstructive defect so if the subject has a severe obstructive defect and a smoking history of more than ten years, it is clearly related to cigarette smoking. However, if the miner has a combined restrictive and obstructive defect, the contribution of both coal dust and cigarette smoking must be considered. Senator Adams said that if there is a preconceived notion of the number of years a miner has smoked, and if that information will bear presumptive weight, advocates of miners need to know that information.
Representative Turner established that coal workers’ pneumoconiosis is a disease, that continued exposure to coal mine dust can cause it to progress, and that a miner can have the disease and it might not show up on an x-ray. Dr. Lieber said an x-ray cannot detect very early changes. Additionally Representative Turner established that doctors cannot distinguish between exposure to coal dust or cigarette smoking, nor how much is actually attributable to either. Dr. Burki said that if the functional defect is entirely obstructive, it is very unlikely that it is due to silica or coal dust. The only problem is when the defect is obstructive and restrictive, because cigarette smoking does not cause a restrictive defect. Representative Turner said under federal black lung guidelines, one can be considered totally disabled if pulmonary function is below 60 percent; however in Kentucky the level must be below 55 percent.
Representative Turner asked the pulmonologists to define bronchodilator. Dr. Mallampalli said that a bronchodilator is a medication that works on the airways by relaxing the bronchial muscle, decreasing the resistance to airflow. Representative Turner asked whether a person using a bronchodilator would be more susceptible to dust exposure. Dr. Mallampalli said a chance exists that the person would be more vulnerable, but she said it would depend on the individual’s susceptibility.
Representative Turner asked Dr. Burki if, when conducting an exam, he tries to determine the number of years a miner has worked in the mine. Dr. Burki said the work history is available and he tries to determine the precise location where a miner was working, but there is no way to distinguish how much silica or coal dust a miner breathes. He said if there are eggshell calcifications on the chest x-rays, you can be reasonably certain it is due to silica dust which is worse than coal mine dust. Once there is evidence of pneumoconiosis, even with acceptable lung function, Dr. Burki recommends that the miner not return to work in the coal mine. He also said in the presence of a reactive airways disease, and a breathing level below 80 percent prior to use of a bronchodilator, it is even more important that the miner does not expose himself to coal dust, because continued exposure further decreases lung function.
Senator Kerr asked why such diversity of opinion exists regarding whether or not pneumoconiosis is a disease. Dr. Mallampalli said she does not believe there is such a divergence of opinion as to whether the disease exists, rather a gray area exists ascribing causation of functional abnormalities. She said there is no question that coal workers’ pneumoconiosis (black lung) exists. In addition Dr. Lieber said a problem exists because there are no large controlled studies.
Senator Roeding asked the panel of doctors if it was their opinion that the legislature should consider changing Kentucky’s black lung evaluation process. Dr. Lieber said presently only a frontal view chest x-ray is required. He said he thought it would be helpful to obtain a side or lateral view.
In response to a question by Representative Gray, Dr. Burki said it could be possible that evidence is going undetected because of the lack of autopsies of coal workers. He said when he has reviewed postmortem records of a coal worker who died, the presence of coal workers’ pneumoconiosis had been detected.
Representative Stewart asked whether the use of a biopsy was feasible in making a determination of the existence of black lung. Dr. Mallampalli said it is rare to require a biopsy.
In response to questioning by Representative Turner, Dr. Mallampalli agreed that existing conditions such as bronchitis or emphysema could be made worse if the person returns to the mines. In addition, Representative Turner referred to Dr. Candor’s testimony from a previous meeting, in which he stated that breathlessness is the most important symptom of the disease but is not quantifiable and cannot be relied upon solely to assess impairment of an individual. The doctors agreed with that statement.
Senator Adams referred to the case of a client diagnosed with coal workers’ pneumoconiosis who had poor blood gas studies and a Class 4 AMA impairment rating. He asked Dr. Mallampalli to explain to the committee how one diagnostic test can be more definitive of a person’s impairment than another. Dr. Mallampalli explained that the reflection of the gas exchange, or carbon dioxide transported across lung tissue, is not measured by ventilation studies. The studies measure two different things. She explained that the blood gas test does not require the individuals’ cooperation but that the pulmonary function test does, and that the pulmonary function test is what compensation is based on in Kentucky. She added that the blood gas is a reflection of abnormality of gas exchange but is affected by many things other than just dust lung disease.
Senator Stine introduced Dwight Lovan, Chairman of the Kentucky Workers’ Compensation Board, who provided a comparison of Kentucky’s workers’ compensation provisions and other states. He commented that because workers’ compensation law is statutory, it is very state specific. He reviewed Kentucky’s black lung history beginning with 1972.
Robert Smith, Commissioner, Bureau of Employment Programs, Charleston, West Virginia, provided an overview of West Virginia’s evaluation process. He said one distinction of West Virginia’s process is that occupational pneumoconiosis includes all harmful exposure of hazardous materials not just black lung. He explained that West Virginia has an expert board and the law mandates that all cases be referred to it. He said the board conducts evaluations similar to Kentucky’s and the evaluation includes an x-ray exam, but West Virginia’s statutes do not mandate the use of ILO standards, except in determining the quality of the x-ray. He said in West Virginia, Category 1/0 would probably be seen as a positive x-ray whereas it would not be in Kentucky. He further stated that some awards of benefits are based solely on the presence of the disease alone, without any impairment. He said in 1999, 431 awards of benefits for occupational pneumoconiosis were for coal cases. Of the 431 awards, 192 were for positive x-rays with no impairment. Virginia has a chart which evaluates and determines impairment from pulmonary function studies or blood gas studies, or a DCLO study. The pulmonary function values utilized differ from the AMA’s fourth, edition, and awards are made for impairment based upon the ratio between forced vital capacity and FEV1. The board does not use bronchodilators in the initial exam of claimants. He said there is no scientific way to determine whether pneumoconiosis is present, and the board evaluates on a case-by-case basis. Smoking history is considered based on the number of pack years a person has smoked, and allocation of the effect is based on clinical evaluation. He said West Virginia has a rebuttable presumption and that five percent awards provide 20 weeks of benefits with the maximum benefit level at $8,000 or $9,000. The maximum weekly benefit is $500. In 1999, the board awarded 193 ten percent awards, 33 fifteen percent awards, three twenty percent awards, four twenty-five percent awards, one thirty-five percent award, one fifty percent award, and four total awards. He pointed out that 93 percent of awards are 15% or less. In conclusion he stated that awards are rarely more than 15 percent, attributing the reason to cleaner mines, better use of safety equipment, and new and different mining techniques.
Senator Adams asked Mr. Smith to clarify if West Virginia’s black lung provisions determine impairment on the basis of pulmonary function studies or blood gas tests. Mr. Smith responded that either one or both are used, as well as the DCLO test which determines smoking activity. At Senator Stine’s request to elaborate, Mr. Smith said the DCLO usually does not arise in initial studies, but would usually be used during the adjudication process.
Senator Roeding commented on cleaner mines and improved mine safety. Mr. Smith commented on the technological developments in the mining industry of the last several years and stated that prevention of injury and disease is the best way to hold down costs. In closing he said, however, that although dust levels have been reduced, it does not mean that dust is not present.
Senator Stine apprised the members of the next meeting which has been scheduled for November 15 and asked that anyone interested in testifying should notify staff in ample time to make arrangements.
The meeting adjourned at 1:15 p.m. by voice vote.