BLACK LUNG BOARD DOCTORS USING OUTDATED STUDY FOR EVALUATIONS

Publication: THE SUNDAY GAZETTE-MAIL
Published: 05/23/1999
Page: P1A
Headline: BLACK LUNG BOARD DOCTORS USING OUTDATED STUDY FOR EVALUATIONS
Byline: PAUL J. NYDEN

SUNDAY GAZETTE-MAIL

When West Virginia coal miners, glass blowers or asbestos workers apply for disability benefits, their breathing ability is evaluated
using a 1961 medical study. That study, the so-called "Kory Study," included both smokers and nonsmokers.

Using the Kory study violates state regulations and ignores several medical studies conducted since it was published.

Bob Smith, a lawyer who heads the Workers' Compensation Fund Office of Judges, said it is not his official policy to use Kory standards.

"We haven't made a decision on this issue yet. It is not policy until I direct the office to use it. And I haven't directed the office yet,"
Smith said Friday. Occupational Pneumoconiosis Board doctors, however, refuse to use the updated medical studies that exclude smokers.

In 1961, Ross Kory and three other researchers examined lung capacities of 468 men between the ages of 18 and 66, at 15 Veterans
Administration hospitals.

 

E. William Harvit, a Charleston lawyer who represents workers with lung problems, believes, "It is inherently unfair to use smokers to
establish normal predicted values to determine damage to the lungs of persons exposed to asbestos and other dusts. "There is no question the Kory standard reduces awards to workers," Harvit said. "Every time they take off a percentage point, the worker  loses $1,000." Harvit represents Robert Lee Boggess, a nonsmoker employed at Union Carbide for more than 35 years. In November 1997, Boggess won a 10
percent disability award, based on medical tests conducted by Charleston pulmonary specialist Dr. Dominic Gaziano.  Gaziano wrote, "The major drawback to the Kory standard was that it included cigarette smoking men. Since that time, there have been a number of equal studies that have eliminated cigarette smokers We use [the] Morris [study] which is a widely-accepted reference."

John McClaugherty, a Jackson & Kelly lawyer who represents Union Carbide, appealed the Boggess award, criticizing Gaziano for not using
the Kory standard. The Occupational Pneumoconiosis Board, headed by Dr. James H. Walker, then reduced Boggess' award from 10 percent to 5 percent.

Terry Ridenour, an administrative law judge for the Office of Judges, upheld the Occupational Pneumoconiosis Board on March 2. Asked why she accepted the Kory standard, Ridenour said, "It is the procedure that  has always been there." Last September, Harvit asked Walker himself why he used the Kory standard.  "Is there a regulation that you're relying on for that particular position?" Harvit asked in a legal deposition about Harlan Ray Holton, an Inco Alloys worker.  Walker replied, "I think [it's] the commissioner's standards."

Last week, Workers' Compensation Commissioner William Vieweg did not  return telephone calls seeking comment. Oddly, use of the Kory standard violates the Workers' Compensation Fund's own regulations. One regulation states that lung-testing procedures "shall be judged
unacceptable and cannot be considered in evaluating pulmonary  functional impairment" when "predicted values are derived from Kory's
Nomogram." The American Thoracic Society published an official statement on "Lung Function Testing" in March 1991 criticizing the 30-year-old Kory  study.

"Subjects used to generate reference values should be free of  respiratory symptoms and disease. Reference equations based on
nonsmokers should be used for most clinical applications," the society stated.

Smith said previous rulings from his office are not "precedent" decisions. "I am going to look at this and make a decision one way or the other," Smith said. "The way we do precedent decisions is that I designate it  as such. Administrative law judges decide cases, but they are not  precedential." After Smith's office rules, either side may appeal to the Workers'  Compensation Appeal Board. Either party may then appeal to the state Supreme Court. "I don't consider Appeal Board decisions a binding precedent on us,"
Smith said. "Supreme Court rulings are binding on us, as they should be."

To contact staff writer Paul J. Nyden, call
348-5164.