Black Lung Benefits Program
Administrative and Structural Changes Could Improve Miners' Ability to Pursue Claims Gao ID: GAO-10-7 October 30, 2009The Department of Labor (DOL) Black Lung Benefits Program provides medical and income assistance to coal miners who suffer total disability or death due to lung disease caused by coal dust. To provide insight into DOL's administration of the Black Lung Benefits Program, GAO is reporting on (1) how long it takes to process and resolve black lung benefits claims; (2) at what rate and for what reasons black lung claims and appeals are denied by DOL; and (3) what barriers, if any, confront miners or their survivors in pursuing their claims. GAO collected and analyzed black lung claims and appeals data and interviewed officials at relevant federal agencies, national organizations, and selected local organizations at two sites.
In fiscal year 2008, DOL issued decisions on claims in less than 1 year on average at each stage of adjudication, yet according to officials and experts, the appeals and remands (claims sent back to the prior stage of review for further consideration or development) that follow decisions can keep claims in the system for years. Although DOL does not track how long all claims remain in the claims and appeals process, we examined 763 miner claims filed between 2001 and 2008 that were ultimately awarded benefits by mine companies. We found that mine companies agreed to pay benefits for about 73 percent of these claims within 3 years from the date of the initial claim, roughly 24 percent of claims in 3 to 6 years, and the remaining 4 percent in 6 to 8 years. The program also contains financial incentives for both miners and mining companies to keep claims in the appeals process. For example, some miners may extend the appeals process to maintain their payment of interim benefits. Factors that add additional time to the appeals process also include allowing time for claimants to find legal representation and waiting until there are sufficient cases in rural areas before sending a judge to hold a hearing. In 2008, most claims (87 percent) were initially denied. Few claimants areable to prove they meet all of the program's eligibility requirements, and for certain cases, required conditions are difficult to prove. For example, some miners--those with a history of smoking--develop lung disease associated with long-term exposure to coal mine dust but which frequently cannot be detected by X-ray. Though current science does not allow a medical distinction between lung disease caused by smoking and by coal mine dust, regulations require that claimants establish that their lung disease is significantly related to or substantially aggravated by coal dust. In such cases, judges told us they rely heavily on nonclinical evidence, such as physician credentials, length of depositions, and level of sophistication of evidence presented by claimants and mine operators to determine claimant eligibility. According to some DOL administrative law judges, mining company doctors are usually better credentialed and produce lengthier and more sophisticated medical reports and evaluations. GAO found that coal miners face a number of challenges pursuing federal black lung claims, including finding legal representation and developing sound medical evidence to support their claims. DOL officials identified miners' lack of resources, the low probability of success, and high litigation costs for their cases as factors that contribute to the difficulties miners face in finding legal representatives. Miners also encounter challenges in developing sound medical evidence. DOL administrative law judges said medical evidence prepared by DOL-approved doctors for claimants does not always provide sound or thorough evidentiary support for their claims. Further, various practices of medical testing, a key measure of black lung-related disability, may contribute to inaccurate disability test readings.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-10-7, Black Lung Benefits Program: Administrative and Structural Changes Could Improve Miners' Ability to Pursue Claims
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Report to the Chairman, Subcommittee on Health Care, Committee on
Finance, U.S. Senate:
United States Government Accountability Office:
GAO:
October 2009:
Black Lung Benefits Program:
Administrative and Structural Changes Could Improve Miners' Ability to
Pursue Claims:
Black Lung Benefits Program:
GAO-10-7:
GAO Highlights:
Highlights of [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-10-7],
a report to the Chairman, Subcommittee on Health Care, Committee on
Finance, U.S. Senate.
Why GAO Did This Study:
The Department of Labor (DOL) Black Lung Benefits Program provides
medical and income assistance to coal miners who suffer total
disability or death due to lung disease caused by coal dust. To provide
insight into DOL‘s administration of the Black Lung Benefits Program,
GAO is reporting on (1) how long it takes to process and resolve black
lung claims and appeals are denied by DOL; (2) at what rate and for
what reasons black lung claims; and (3) what barriers, if any, confront
miners or their survivors in pursuing their claims. GAO collected and
analyzed black lung claims and appeals data and interviewed officials
at relevant federal agencies, national organizations, and selected
local organizations at two sites.
What GAO Found:
In fiscal year 2008, DOL issued decisions on claims in less than 1 year
on average at each stage of adjudication, yet according to officials
and experts, the appeals and remands (claims sent back to the prior
stage of review for further consideration or development) that follow
decisions can keep claims in the system for years. Although DOL does
not track how long all claims remain in the claims and appeals process,
we examined 763 miner claims filed between 2001 and 2008 that were
ultimately awarded benefits by mine companies. We found that mine
companies agreed to pay benefits for about 73 percent of these claims
within 3 years from the date of the initial claim, roughly 24 percent
of claims in 3 to 6 years, and the remaining 4 percent in 6 to 8 years.
The program also contains financial incentives for both miners and
mining companies to keep claims in the appeals process. For example,
some miners may extend the appeals process to maintain their payment of
interim benefits. Factors that add additional time to the appeals
process also include allowing time for claimants to find legal
representation and waiting until there are sufficient cases in rural
areas before sending a judge to hold a hearing.
In 2008, most claims (87 percent) were initially denied. Few claimants
are able to prove they meet all of the program‘s eligibility
requirements, and for certain cases, required conditions are difficult
to prove. For example, some miners”those with a history of smoking”
develop lung disease associated with long-term exposure to coal mine
dust but which frequently cannot be detected by X-ray. Though current
science does not allow a medical distinction between lung disease
caused by smoking and by coal mine dust, regulations require that
claimants establish that their lung disease is significantly related to
or substantially aggravated by coal dust. In such cases, judges told us
they rely heavily on nonclinical evidence, such as physician
credentials, length of depositions, and level of sophistication of
evidence presented by claimants and mine operators to determine
claimant eligibility. According to some DOL administrative law judges,
mining company doctors are usually better credentialed and produce
lengthier and more sophisticated medical reports and evaluations.
GAO found that coal miners face a number of challenges pursuing federal
black lung claims, including finding legal representation and
developing sound medical evidence to support their claims. DOL
officials identified miners‘ lack of resources, the low probability of
success, and high litigation costs for their cases as factors that
contribute to the difficulties miners face in finding legal
representatives. Miners also encounter challenges in developing sound
medical evidence. DOL administrative law judges said medical evidence
prepared by DOL-approved doctors for claimants does not always provide
sound or thorough evidentiary support for their claims. Further,
various practices of medical testing, a key measure of black lung-
related disability, may contribute to inaccurate disability test
readings.
What GAO Recommends:
GAO recommends that DOL implement several administrative changes,
including creating a measure to improve the agency‘s ability to track
performance and improving the DOL form used to document claimant
medical evaluations. GAO also recommends that DOL evaluate the
potential for proposing, to Congress, several structural changes to the
program, including strategies for increasing claimant representation
and improving requirements for documenting evidence. DOL agreed with
most of the recommendations and will begin to evaluate potential
structural changes, but disagreed that DOL should track performance
through the claims and appeals process.
View [hyperlink, http://www.gao.gov/products/GAO-10-7] or key
components. For more information, contact Andrew Sherrill at (202) 512-
7215 or sherrilla@gao.gov.
[End of section]
Contents:
Letter:
Background:
DOL Issued Claims Decisions at Each Stage of the Process, on Average,
in 1 Year or Less, but High Rates of Appeal and Remand, Among Other
Factors, Delay Resolution of Many Claims:
Most Claims Are Initially Denied, Most Often because Claimants Cannot
Meet All Evidentiary Requirements:
Coal Miners Face a Number of Challenges in Pursuing Federal Black Lung
Benefits, Including Finding Legal Representation and Developing Sound
Medical Evidence:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the Department of Labor:
Appendix III: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Performance Data for Each Stage of Claims Processing and
Adjudication in Fiscal Year 2008:
Table 2: The Number of Black Lung Claims and Appeals Decisions Issued
and the Percent That Resulted in Denial of Claimant Benefits in Fiscal
Year 2008:
Figures:
Figure 1: Deaths Related to Black Lung Disease from 1968 to 2005:
Figure 2: Overview of the Black Lung Claims Adjudication Process:
Figure 3: Time to Resolve Claims Filed between 2001 and 2008 for Miners
Awarded Benefits from Mine Companies:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
October 30, 2009:
The Honorable John D. Rockefeller IV:
Chairman:
Subcommittee on Health Care:
Committee on Finance:
United States Senate:
Dear Mr. Chairman:
The Black Lung Benefits Program, created in 1969 by Congress,[Footnote
1] provides medical treatment and monthly income assistance[Footnote 2]
to miners who can prove that they are totally disabled--unable to
perform usual coal mine work due to pulmonary impairment--resulting
from lung disease caused by coal dust. Their surviving dependents may
also apply for compensation. Serving more than 40,000 beneficiaries and
paying more than $250 million in benefits in fiscal year 2008, the
Black Lung Benefits Program remains a significant source of black lung
compensation for the nation's coal miners. However, with average claim
approval rates historically below 15 percent and with reports of some
cases that take years to resolve, concerns have been raised about the
extent to which federal black lung benefits are accessible to miners or
to their survivors and dependents.
The program is administered by the Division of Coal Mine Workers'
Compensation in the Office of Workers' Compensation Programs (OWCP)
within the Department of Labor (DOL). Claims are processed by nine OWCP
district offices, and appeals are adjudicated by two DOL agencies: the
Office of Administrative Law Judges (OALJ) and the Benefits Review
Board (BRB). Claimants and mine operators may further appeal these
agency decisions to the federal appellate courts. Awards are funded
from two sources: mine operators who are identified as the responsible
employers of claimants and, when responsible employers cannot be
identified, the Black Lung Disability Trust Fund. The Trust Fund, which
is administered by OWCP, is supported through an excise tax levied on
all underground coal mine operators.
To gain insight into the administration of the Black Lung Benefits
Program, you asked that we determine (1) how long it takes to process
and resolve black lung benefits and claims; (2) at what rate and for
what reasons black lung claims and are denied by DOL; and (3) what
barriers, if any, confront miners or their survivors in pursuing their
claims.
To answer these questions, we interviewed officials from the three DOL
agencies responsible for claims processing and adjudication--OWCP,
OALJ, and BRB. To learn how long it takes to process and resolve black
lung benefit claims, we collected and analyzed case processing data
from OWCP, OALJ, and BRB. To determine the rate and reasons that OWCP
denied black lung claims, we collected and analyzed data from OWCP's
case management system. To determine the rate that OALJ and BRB
decisions resulted in the denial of black lung claims, we reviewed OALJ
and BRB appeals cases decided in fiscal year 2008 and calculated the
number of denials and the total number of cases and then computed a
denial rate. To determine the reasons that OALJ and BRB have denied
black lung claims, we selected and analyzed random samples of OALJ and
BRB cases denied in fiscal year 2008 and projected the results onto the
population. We assessed OWCP, OALJ, and BRB processing and denial data
for reliability. On the basis of this assessment, we concluded that the
data were sufficiently reliable for the purposes of our report. To
describe the barriers that miners and survivors face, we interviewed
Health Resources and Services Administration (HRSA) officials to get
more information about the Black Lung Clinics program, a program that
provides grants to public and private nonprofit organizations to
provide specialized diagnosis, treatment, benefit counseling, and
outreach services to miners suffering with black lung disease. We also
interviewed officials from the National Institute for Occupational
Safety and Health (NIOSH) to learn about the state of science related
to identifying black lung disease and its cause. We also conducted site
visits to West Virginia and Kentucky, black lung-affected regions.
These two sites were selected because they are (1) located in a state
with a high level of black lung mortality, (2) located in an OWCP
district with a high volume of black lung claims filings, and (3)
identified by black lung experts as demonstrative of factors that
impede or facilitate claimants' pursuit of federal black lung claims
and appeals. During the site visits, we conducted a small group
interview with local black lung stakeholders at each site, toured black
lung clinic facilities, and met with officials from OWCP district
offices responsible for adjudicating a claimant's initial claim. In
addition to our site visits, we also interviewed spokespeople at
national organizations related to black lung, including the National
Mining Association, an organization that represents the mining
industry, as well as the United Mine Workers of America (UMWA), a union
that represents coal miners. In addition, we reviewed relevant federal
statutes, regulations, administrative cases, and court cases. We
conducted this performance audit from October 2008 to October 2009 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient and appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives. For additional
information on our scope and methodology, see appendix I.
Background:
According to NIOSH, coal workers' pneumoconiosis (CWP), also known as
black lung disease,[Footnote 3] has been a contributor or underlying
cause of death for more than 73,800 United States workers since 1968
(see fig.1).[Footnote 4] Following the passage of the Federal Coal Mine
Health and Safety Act of 1969, which established the first
comprehensive respirable dust standards for coal mines, the prevalence
of black lung disease among mine workers decreased about 90 percent
from 1969 to 1995. However, after 1995, the prevalence of black lung
disease rose. The increase was more marked in specific parts of the
country, such as the Appalachian region.[Footnote 5] By 2006 the
prevalence of black lung disease had more than doubled among
underground coal miners who had worked 25 to 29 years--increasing from
3.4 percent in 1995 to 7.9 percent. The rate of black lung disease
among underground coal miners with 20 to 24 years of experience
increased from 2.5 percent in 1995 to 6 percent in 2006.[Footnote 6]
According to NIOSH officials, black lung disease may be occurring for a
number of reasons, including weaknesses in the current coal mine dust
regulations, noncompliance with those regulations, new risk factors
associated with changing mining conditions, longer work hours, and
missed opportunities to prevent severe disease through periodic medical
screening.
According to NIOSH, significant progress has been made toward improving
the health condition; however, with coal currently mined in 27
states[Footnote 7] and coal mines employing an average of 117,082
workers,[Footnote 8] coal miners continue to be at risk of developing
occupational lung disease. While miners across the country remain at
risk for lung disease, incidence of black lung-related deaths are more
concentrated in the Appalachian region (see fig. 1), where the coal
mined has high carbon content. To address these issues, the DOL's Mine
Safety and Health Administration intends to publish a proposed rule to
lower the coal mine dust permissible exposure limit in April 2011.
Figure 1: Deaths Related to Black Lung Disease from 1968 to 2005:
[Refer to PDF for image: map of United States showing regions of death]
Source: Energy Information Administration's Annual Cost Report, 2007;
NIOSH Occupational Respiratory Disease Surveillance program.
Note: The statistics used to create this graphic only refer to CWP, not
other chronic respiratory or pulmonary impairments arising out of coal
mine employment.
[End of figure]
The Black Lung Benefits Program provides medical and income assistance
to coal mine workers who suffer disability or death due to black lung
disease.[Footnote 9] To be eligible for black lung benefits, a coal
miner must prove total disability due to pneumoconiosis (a chronic
disease of the lung) arising from coal mine employment. Specifically,
the miner must establish each of the following elements: (1; (2) the
lung disease a;[Footnote 10] (3) the miner suffers from a totally
disabling respiratory or lung impairment (a miner is considered totally
disabled if black lung prevents him from engaging; and (4) the miner's
pneumoconiosis is a substantially contributing cause of his
disability.[Footnote 11]
If a claimant[Footnote 12] is awarded benefits, the mine company that
is determined to be the responsible employer of the miner generally
must provide for the payment of benefits, either directly or through
insurance. The Black Lung Disability Trust Fund pays the cost of black
lung claims when no coal mine operator can be held liable for
payments.[Footnote 13] The Black Lung Disability Trust Fund is financed
by coal mine companies through an excise tax. Under the Black Lung
Benefits Revenue Act of 1977, each coal mine operator is required to
pay an excise tax to support payment of benefits to claimants and to
cover the cost of administering the program.[Footnote 14]
The Black Lung Benefits Program is administered by the Division of Coal
Mine Workers' Compensation in OWCP. OWCP, OALJ, and BRB are three
independent bodies within DOL that process claims, adjudicate cases,
and issue decisions (see fig. 2).[Footnote 15] Once OWCP issues a
decision, either the claimant, responsible mine operator (RO), or Black
Lung Disability Trust Fund officials can request a hearing[Footnote 16]
by OALJ. The administrative law judge provides a fresh review of the
evidence and issues a decision. Any findings or conclusions by OWCP are
not relevant or binding on the administrative law judge. Parties can
appeal OALJ decisions to BRB, BRB decisions can be appealed to the
appropriate United States Circuit Court of Appeals, and finally,
Circuit Court of Appeals decisions may be appealed to the Supreme Court
of the United States. Both OALJ and BRB can remand--send claims back--
to lower adjudicative bodies for additional review. Cases may be
remanded for procedural errors or for further development of evidence.
Figure 2: Overview of the Black Lung Claims Adjudication Process:
[Refer to PDF for image: flowchart]
Listed in sequential order:
Claimant: (miner, his dependents,his survivors, or others) files claim;
OWCP: Office of Workers‘Compensation Programs:
Claim evaluated: after employment, medical, and other information
gathered;
Preliminary assessment issued on claim and any potential liability of
responsible mine operator (RO);
Claimant and RO given opportunity to submit additional evidence;
Decision issued on claimant‘s entitlement and any liability of RO;
Awarded:
Was RO identified?
Yes:
Did RO dispute decision?
Yes:
TF pays claimant interim benefits if RO delays;
No:
RO pays claimant benefits;
Was RO identified?
No:
Trust Fund (TF) pays claimant benefits;
Decision issues on claimant's entitlement and any liability of RO:
Denied:
or:
TF pays claimant interim benefits if RO delays;
If claimant, TF, or RO appeal OALJ will perform a fresh analysis of the
evident. Claimant and/or RO may be allowed to submit new medical
evidence (leading from OALJ Office of Administrative Law Judges)
Formal Hearing;
Decision issued on claimant's entitlement and any liability of RO
Awarded:
Claimant paid by TF or RO, which can appeal;
Appeal:
or:
Denied:
If claimant, TF, or RO appeal, BRB reviews OALJ decision (leading from
BRB: Benefits Review Board);
Decision issued affirming, reversing, or modifying OALJ decision:
Awarded:
Claimant paid by TF or RO, which can appeal
Decision issued affirming, reversing, or modifying OALJ decision:
Denied:
Claimant paid by TF or RO, which can appeal
Appeal:
If claimant, TF, or RO appeal, court reviews BRB decision (leading from
U.S. Court of Appeals)
Decision issued affirming, reversing, or modifying BRB decision:
If still unsatisfied, claimant, TF, or RO can petition the U.S. Supreme
Court;
Source: GAO analysis of federal regulations, agency documents, and
discussions with agency officials.
[End of figure]
Notes: This figure is intended to present a basic overview of the Black
Lung Benefits Program's claims process. For clarity, some steps,
processes, and legal options for any party to a claim are omitted.
Modification of a claim may be requested up to one year after a
decision denying benefits or by any party up to one year after the last
payment of benefits.
To ensure that claimants can properly develop evidence for their claim,
DOL is required by law to give miners the opportunity to receive a
complete pulmonary evaluation, which is paid for by the
program.[Footnote 17] DOL provides the miner with a list of doctors and
medical facilities that DOL has authorized to perform complete
pulmonary evaluations that are located in the state of the miner's
residence and bordering states.[Footnote 18] If a miner fails to
undergo a required medical examination without good cause, the claim
may be denied.[Footnote 19] In addition, a miner[Footnote 20] may
submit a medical report (obtained at the miner's expense) from a
personal doctor or a physician.[Footnote 21]
In addition, mine workers afflicted with black lung disease may have
access to some resources that help monitor their health and provide
access to black lung benefits. For example, the Black Lung Clinics
program, a federal program administered by HRSA, provides grants to 15
public and private nonprofit organizations, known as "Black Lung
Clinics," which provide specialized diagnosis and treatment services,
outreach, and educational programs to help patients and their families
deal with the disease. Black Lung Clinic benefit counselors also help
provide clients with information about additional sources of social,
medical, and legal assistance, specifically on where to obtain legal
representation to establish a federal black lung benefits claim. In
addition, some nonprofit organizations provide resources and support
for coal miners and their survivors. For example, UMWA advocates for
improving coal mine health and safety laws and regulations, and the
Washington and Lee University Black Lung Legal Clinic provides legal
assistance to coal miners and their survivors in pursuing federal black
lung benefits.
DOL Issued Claims Decisions at Each Stage of the Process, on Average,
in 1 Year or Less, but High Rates of Appeal and Remand, Among Other
Factors, Delay Resolution of Many Claims:
DOL Issued Claims Decisions at Each Stage of the Claims Process, on
Average, in 1 Year or Less:
According to department data for fiscal year 2008, DOL decided claims
at each stage of the claims process, on average, in 1 year or less,
meeting its respective performance goals[Footnote 22] (see table 1). At
the initial stage of claim processing, it took an average of 205 days
for OWCP to issue a decision from the date the claim was
received.[Footnote 23] OWCP receives the largest number of claims for
miners or their dependents annually. At the first and second stages of
appeal, OALJ averaged within 365 days to issue a decision on a claim
from the date a transcript of the hearing was prepared, while BRB
averaged 341 days to make a decision from the date the claim was
received.
Table 1: Performance Data for Each Stage of Claims Processing and
Adjudication in Fiscal Year 2008:
Level of claims and appeals: Office of Worker's Compensation (OWCP);
Total new claims: 4,269;
Total decisions: 4,416;
Average days to issue decision: Performance goal: 220[B];
Average days to issue decision: Actual performance: 205.
Level of claims and appeals: Office of Worker's Compensation (OWCP);
Total new claims: 1,357[C];
Total decisions: 1,367;
Average days to issue decision: Performance goal: less than/equal to
365[D];
Average days to issue decision: Actual performance: less than/equal to
365.
Level of claims and appeals: Office of Worker's Compensation (OWCP);
Total new claims: 573;
Total decisions: 727;
Average days to issue decision: Performance goal: less than/equal to
365;
Average days to issue decision: Actual performance: 341.
Source: Workload and performance data from OWCP, OALJ, and BRB, as well
as from OWCP's Automated Support Package claims tracking system.
Notes: The annual number of claims received at first and second appeals
tends to be less than those received at the initial claims processing
stage because many claims at OWCP are withdrawn, abandoned, or awarded
or denied without appeal.
[A] Total decisions are greater than the total number of new claims at
each stage, because the total workload at each stage is not captured
solely with new claims (e.g., these data only represent the new claims
filed in fiscal year 2008 and do not include claims yet to be decided
from previous fiscal years). For OWCP, data on pending claims from the
previous fiscal year were not available. However, pending claims
carried over from the previous fiscal year for OALJ and BRB are
detailed below.
In addition, these data for the number of claims do not include a
number of claims for which OWCP provides services for claimants
currently receiving benefits (e.g., miners receiving benefits may
submit a claim requesting modification of medical benefits provided).
[B] This performance goal is for all types of claims, including claims
with and without an identified RO and claims that are withdrawn or
abandoned.
[C] In fiscal year 2008, OALJ also had 1,938 pending claims carry-over
from the previous fiscal year.
[D] OALJ does not calculate the average time to issue a decision on
claims, but for fiscal year 2009, it established a new performance
goal: that 80 percent of decisions are to be issued within 365 days
from the time a hearing transcript was prepared. For this report, OALJ
applied the new performance goal retroactively to fiscal year 2008 and
found that about 84 percent of decisions were issued within 365 days.
[E] In fiscal year 2008, BRB also had 617 pending claims carry-over
from the previous fiscal year.
[End of table]
DOL Does Not Track How Long Claims Remain in the Process, but Some
Claims Spent 3 Years or More in the Process:
DOL does not track how long all claims remain in the claims and appeals
process, but we calculated that about 28 percent of the claims of
miners awarded benefits from mine companies spent 3 years or more in
the process. DOL officials gave the following reasons for not tracking
how long claims may remain in the claims and appeals process:
* The adjudicating bodies at each stage of the Black Lung Benefits
Program's claims and appeals process maintain independence and do not
share similar administrative processes or computer systems.
* OWCP's claimant tracking system was designed, in part, to ensure that
eligible claimants are ultimately paid, not to determine how long
claims remain in the process.
* Determining how long claims persist in the claims and appeals process
can be challenging because it is difficult to determine what
constitutes a claim's resolution. For example, claims can be appealed
up to 30 or 60 days after a decision, and a modification of a claim may
also be requested up to one year after a decision denying benefits or
by any party up to one year after the last payment of benefits.
Given this, we chose to measure how long cases persisted in the claims
and appeals process by using OWCP's data and looking only at when an
identified RO agreed to pay benefits to a miner, which we believe was
the best available indicator of cases that had been resolved.[Footnote
24] Yet, this approach has some limitations as noted above.[Footnote
25]
For the claims we examined, which were filed between 2001 and 2008,
mine companies agreed to pay benefits for the majority of claims within
3 years from the date of the initial claim, while a minority of claims
remained in the process for as many as 8 years before an RO agreed to
pay[Footnote 26] (see fig. 3). We only focused on those claims where a
miner was ultimately awarded benefits by an RO because, according to
DOL officials, these claims are likely to be the most
litigated.[Footnote 27] We also focused on claims made between 2001 and
2008 because DOL officials said that several changes in the regulatory
and statutory structure of the program before then negatively impacted
the rate at which claims moved through the process and that major
regulatory revisions implemented in 2001[Footnote 28] heavily affected
the current program's procedures. For about 73 percent of the 763
examined claims filed between 2001 and 2008, ROs agreed to pay in less
than 3 years. For roughly 24 percent of the 763 claims, ROs agreed to
pay within 3 to 6 years from the time the claim was filed. For the few
remaining claims, about 4 percent, ROs agreed to pay within 6 to 8
years from the time a claim was filed.[Footnote 29] However, the
results of our analysis may represent a best-case scenario because some
claims filed between 2001 and 2008 are still in the claims and appeals
process and the length of time necessary for a RO to agree on payment
could not be measured. In addition, these findings cannot be
generalized to miners who were denied benefits or other types of
claimants.
Figure 3: Time to Resolve Claims Filed between 2001 and 2008 for Miners
Awarded Benefits from Mine Companies:
[Refer to PDF for image: vertical bar graph]
Years to resolution: 1;
Number of claims: 257.
Years to resolution: 2;
Number of claims: 173.
Years to resolution: 3;
Number of claims: 124.
Years to resolution: 4;
Number of claims: 75.
Years to resolution: 5;
Number of claims: 58.
Years to resolution: 6;
Number of claims: 48.
Years to resolution: 7;
Number of claims: 20.
Years to resolution: 8;
Number of claims: 8.
73% of claims tool less than 3 years;
24% took 3 to 6 years;
4% took more than 6 years.
Source: GAO analysis of data from the Department of Labor's Automated
Support Package claims tracking system.
Notes: Percentages may not add to 100 due to rounding. In addition,
this analysis measured the time from the application date of a claim to
the time an RO agreed to pay benefits as measured by OWCP's Automated
Support Package claims tracking system. However, OWCP may not have
received some claims for several months after the claim was originally
submitted by a claimant. Moreover, according to DOL officials, the time
taken for a miner to receive the first benefits payment from the RO may
actually take as much as a month longer for administrative reasons.
Finally, this analysis did not include miners who were denied benefits,
deceased miners' widows or other dependents, or miners who were granted
awards from the Black Lung Disability Trust Fund. For more information
on this analysis, see appendix I.
[End of figure]
According to DOL officials, far fewer claims end up in the appeals
process now than was the case historically due to a decline in the
number of claims and the fact that presently, for the majority of
claims, there is no request for further action beyond OWCP's decision.
According to DOL officials, on average, about 80 percent of all claims
decided by OWCP annually have no requests for further action. For
example, in fiscal year 2006, OWCP decided about 81 percent of all
claims with no requests for further action pending after one year. In
addition, DOL officials said that for a number of reasons--including a
decline in the number of miners in the United States--they receive far
fewer claims annually than in prior years. For example, according to
data provided by DOL, in fiscal year 1985, 12,250 new claims were filed
at OWCP, while there were only 4,269 new claims filed in fiscal year
2008.
A Significant Number of Claims Are Appealed and Many Claims Are
Remanded:
Although a majority of claims are resolved with OWCP, we found that a
significant number of claims--approximately 20 percent--request further
action, many of which are appeals to OALJ. Both miners and mine
operators frequently seek appeals,[Footnote 30] and a significant
number of claims are appealed after a decision is issued by OWCP either
awarding or denying benefits.[Footnote 31] For example, in fiscal year
2008, for claims where an RO was identified and OWCP awarded benefits
to a claimant, mine operators appealed OWCP's decision approximately 80
percent of the time.[Footnote 32] In the same fiscal year,
approximately 15 percent of all miners' claims denied at OWCP were
appealed by miners. In addition, according to BRB officials, between
fiscal years 2004 and 2008, approximately 43 percent of all claims
decided by OALJ were appealed to BRB, and about 10 percent of all BRB
decisions were appealed to federal appellate courts.
In addition to the significant number of claims that are appealed, many
are remanded back to the prior review stage by DOL adjudicators,
according to DOL officials. Officials said remands can extend appeals
for less than 1 month to up to 1 year, depending on why a claim is
remanded and other factors. In fiscal year 2008, BRB remanded one-third
of all claims referred to it back to one of the two lower bodies, while
OALJ remanded 13 percent of claims it considered back to OWCP. Claims
are remanded for several reasons. At the first stage of appeal (OALJ),
remands are made when evidence needs to be developed further or when
the appeal is withdrawn by the litigant or dismissed by the
judge.[Footnote 33] At the second stage of appeal (BRB), remands are
made to either OWCP for the resolution of issues, such as the proper
development of evidence, or to the OALJ for reconsideration.
Officials at DOL offered divergent opinions on why cases were remanded.
Some administrative law judges said claims are sometimes remanded to
OWCP because medical evidence submitted by DOL's approved doctors was
incomplete and required clarification or further development. BRB
judges said claims are commonly remanded to OALJ for reconsideration
because of certain legal deficiencies, such as errors in weighing
evidence. However, several administrative law judges said that they
believed that BRB sometimes remands claims for further review by the
administrative law judge to avoid the potential review of a BRB
decision by a United States Circuit Court of Appeals, and others said
that in their view, certain remands are the result of BRB reweighing
evidence, which is beyond the narrow scope of BRB review.[Footnote 34]
In 2007, an independent program reviewer examined the number of OALJ
remands to OWCP and concluded that further study of the causes of
remands could help DOL identify policies and procedures that reduce
this source of delays.[Footnote 35] No study has been conducted to
determine the causes of remands by any of DOL's adjudicators back to
the prior review stage, whether from adjudicatory bodies back to OWCP
or from BRB to OALJ, according to DOL officials.[Footnote 36]
Stakeholders Say There Are Financial Incentives to Extend Appeals and
Prolong the Adjudication of Claims:
The structure of the Black Lung Benefits Program creates financial
incentives for claimants to appeal denials of claims. According to DOL
officials, some miners extend appeals in an attempt to have interim
benefits reinstated or to maintain their payment of interim benefits.
Specifically, for miners whose claims are initially awarded but then
appealed, the program provides interim benefit payments that cover
medical expenses and a roughly $600 to $1,200 monthly stipend.
Consequently, if an award is overturned by OALJ or BRB, the claimant
has a major incentive to appeal again in an attempt to reinstate these
benefits. Moreover, according to DOL officials, some sick miners never
expect to win; rather, the approach is to keep their black lung claim
alive--for example, by requesting numerous continuances--until their
death, with the expectation that DOL will not seek to recoup interim
benefit payments from their surviving spouse or dependents.[Footnote
37]
DOL officials also said that mine companies have financial incentives
to prolong the adjudication of claims. First, according to DOL
officials, mine companies often skip the initial stage of the claims
process altogether and do not begin to develop a defense until the
hearing before OALJ, which may delay a definitive decision. Under the
program, mine companies are not required to submit evidence during
initial claims processing at OWCP, and as discussed earlier, any
findings or conclusions by OWCP are not relevant or binding on the
administrative law judge. DOL officials said that because some claims
lack merit and many claims are abandoned or withdrawn, mine companies
see no need to develop a defense and submit evidence for these cases.
Second, according to some administrative law judges, when mine
companies do submit evidence during appeals, it is sometimes submitted
after the claimant has first submitted his own evidence and just prior
to a hearing. Doing so may afford the mine companies the opportunity to
evaluate and most effectively counter claimants' evidence, according to
some administrative law judges and claimant attorneys. Some
administrative law judges said that this tactic may delay the issuance
of a decision because judges may allow claimants the opportunity to
develop the record after the hearing if they did not have sufficient
time prior to the hearing to address the newly submitted evidence.
OWCP officials said that a provision in a 1997 proposed rule would have
addressed such delays and other concerns, by requiring parties to
submit all evidence at the initial claim stage.[Footnote 38] According
to these officials, this proposed provision would have allowed OWCP to
make more informed decisions up front and avoid some of the protracted
and expensive appeals.[Footnote 39] The proposal received much
criticism during the public comment period and was not adopted in the
final rule.[Footnote 40] According to DOL officials, one concept from
this proposal has been implemented through an administrative procedure:
prior to issuing a decision on a claim, OWCP now issues a preliminary
assessment concerning the claimant's eligibility for benefits based on
the information gathered to that point. DOL officials said that this
has helped to address mine operator concerns about the costs of
developing a defense for every claim because many claimants withdraw
when OWCP's preliminary assessment does not favor eligibility.
Some Hearings Are Delayed by the Need for Judges to Travel to Remote
Locations and to Grant Claimants Additional Time to Seek
Representation:
Some hearings are delayed because claimants reside in rural and remote
locations. According to administrative law judges, when claimants live
in remote locations, hearings are delayed until several cases can be
scheduled at the same time in one region, which limits lengthy travel
required of judges.[Footnote 41] According to one Black Lung Clinic
official, in some cases, scheduling hearings for miners who live in
remote locations can take more than 2 years. On the other hand, when
asked whether video technology--such as that employed by the Social
Security Administration's Disability Determination Services--might
reduce hearing delays by eliminating the need to travel, some of DOL's
administrative law judges said it might accelerate hearings for miners
or their dependents in rural and remote settings.
Hearings can also be delayed because claimants lack legal
representation. Administrative law judges said that in some cases, the
first appearance by miners or their dependents at the OALJ hearing is
without legal counsel. In such cases, administrative law judges said
that it is standard practice for the judge to ask if the claimant has
legal representation or if the claimant has sought representation. If a
claimant needs more time to obtain legal counsel, the judge typically
grants a hearing continuance.[Footnote 42] According to OALJ,
continuances may delay claims adjudication between 5 and 6 months.
Administrative law judges said that it is not uncommon to grant one or
two continuances to unrepresented claimants seeking counsel.
Most Claims Are Initially Denied, Most Often because Claimants Cannot
Meet All Evidentiary Requirements:
DOL Denies a Majority of Initial Claims and about Half of All
Subsequent Appeals:
Since 2001, most claims have been initially denied; and for 2008, we
calculated that about half of all appeals resulted in the denial of
claimant benefits. The OWCP overall denial rate for black lung claims
has remained constant at around 85 percent or higher in the 8 years
since the fiscal year 2001 changes to the Black Lung Benefits Program
regulations. At the initial claims level, OWCP denied 87 percent of the
4,416 claims decided in fiscal year 2008 (see table 2). There was
virtually no difference between the denial rates for claims filed
against the DOL-managed Black Lung Disability Trust Fund (84 percent)
and claims filed against mine companies (88 percent). At the first
level of appeals, OALJ issued decisions that resulted in the denial of
claimant benefits in more than half, or 53 percent, of the 1,367
decisions issued in fiscal year 2008.[Footnote 43] At the second level
of appeals, BRB decisions resulted in the denial of claimant benefits
in about half, or 47 percent, of the 737 appeals issued in fiscal year
2008.[Footnote 44] Because neither OALJ nor BRB systematically track
whether their decisions result in the award or denial of claimant
benefits, we were only able to determine their denial rates for 1 year
and were not able to determine how they have changed over time.
Table 2: The Number of Black Lung Claims and Appeals Decisions Issued
and the Percent That Resulted in Denial of Claimant Benefits in Fiscal
Year 2008:
DOL agency: OWCP;
Number of black lung claims and appeals decisions issued: 4,416;
Percent of black lung decisions that resulted in the denial of claimant
benefits: 87.
DOL agency: OALJ;
Number of black lung claims and appeals decisions issued: 1,367;
Percent of black lung decisions that resulted in the denial of claimant
benefits: 53.
DOL agency: BRB;
Number of black lung claims and appeals decisions issued: ;
Percent of black lung decisions that resulted in the denial of claimant
benefits: 47.
[End of table]
Source: GAO analysis of Department of Labor data.
Few Claimants Are Able to Prove They Meet All of the Program's
Evidentiary Requirements:
Text Box:
Lung Disease Associated with Long-Term Coal Mine Dust Exposure:
Healthy Lung Photo:
Source: NIOSH, 2009.
Simple Coal Workers' Pneumoconiosis Photo:
Source: NIOSH, 2009.
Coal mine dust can cause a range of lung diseases depending on the
level of exposure. These images, taken from autopsies of deceased
miners show the impact that coal dust can have on the lungs. The second
image depicts lungs that have been damaged as a result of Simple Coal
Workers‘ Pneumoconiosis (CWP). In contrast to the healthy lungs on top,
the CWP lungs show mild to moderate lung scarring that may result in
impaired lung function. While lung scarring is apparent in the autopsy
image, the ability to detect Simple CWP in X-rays may vary by
physician.
[End of text box]
Few claimants are able to meet all of the program's evidentiary
requirements, which are set by law. In order to be eligible for black
lung benefits, claimants generally must prove they have pneumoconiosis-
-coal-induced lung disease--that they are totally disabled as a result
of it, and that the disease is caused by their mine employment. Based
on DOL data, we calculated that over 60 percent of the claims
adjudicated and denied by OWCP in fiscal year 2008 and estimated that
over half of the claims adjudicated and denied by OALJ and BRB were
denied because claimants could not prove that they had pneumoconiosis
or, if they could, that pneumoconiosis had caused disability or
death.[Footnote 45] Some claimants have difficulty proving that their
lung disease is pneumoconiosis.[Footnote 46] Although a lung X-ray can
detect scarring, agency officials report that claimant doctors and
company physicians may each read the X-ray differently. In addition,
according to NIOSH scientists, some miners develop a form of lung
disease associated with long-term exposure to coal mine dust that
impairs lung function but frequently cannot be detected by X-ray.
Agency officials and claimant doctors we interviewed said a significant
portion of black lung claimants who have this form of pneumoconiosis
also have a history of smoking, which presents another evidentiary
problem: while the Black Lung Benefits Program regulations require that
miners prove coal dust is a significant contributing cause of their
disability,[Footnote 47] NIOSH officials reported that there is no
scientific way to assign the proportion of cause to either inhalation
of coal dust or tobacco smoke. Depending on the intensity and duration
of exposures to coal dust and tobacco smoke, both can play a role in
the impairment and disability of a miner. In such cases, judges told us
that they rely heavily on nonclinical evidence to determine whether
claimants are eligible for benefits. According to some administrative
law judges, mining company doctors are usually better credentialed and
produce lengthier, more sophisticated, and comprehensive medical
reports and evaluations than claimants' doctors. For example, some
claimants' doctors may only produce DOL's 4-page medical evaluation,
while RO doctors will provide medical reports in excess of 20 pages
supported by various citations from medical journals.
Text box:
Advanced Coal Workers‘ Pneumoconiosis Photo:
Source: NIOSH, 2009.
Coal Mine-Induced Emphysema Photo:
Source: NIOSH, 2009.
In contrast to Simple Coal Workers‘ Pneumoconiosis (CWP), Advanced CWP,
as seen in the first image, is generally characterized by massive lung
scarring and lesions, resulting in severely impaired lung function. The
second image depicts Coal Mine-Induced Emphysema, which is
characterized by destruction of respiratory tissues, resulting in
impaired airflow through the lungs and into the bloodstream. Emphysema
is one type of Chronic Obstructive Pulmonary Disease (COPD) associated
with long-term coal mine dust exposure, which includes Chronic
Bronchitis, among others.
[End of text box]
Claimants who can prove they have pneumoconiosis may nevertheless be
unable to establish that it is a significantly contributing cause for
the condition of their lungs, if other medical conditions are present
that may contribute as well. Agency officials, claimants' attorneys,
and physicians with whom we spoke said claimants may also suffer from
ailments such as heart disease, tuberculosis, or sarcoidosis--
impairments which, like pneumoconiosis, can diminish a claimant's lung
function. In cases where it is difficult to determine the cause of a
claimant's disability, administrative law judges must decide whether
the claimant's doctor or the mine operator's doctor has offered the
most well-reasoned medical opinion. As in the case of smokers with
pneumoconiosis, judges told us they rely heavily on nonclinical
evidence, namely physician credentials and the length and
comprehensiveness of the evidence presented by the parties.
Some Parties Suggest That the Black Lung Program Should Provide a
Settlement Option:
Although it can be difficult for some claimants to meet all of the
Black Lung Benefit Program's evidentiary standards, there is no
settlement option, such as an agreement for payment of partial benefits
for partial disability. Though settlement is prohibited under the
current statute,[Footnote 48] some stakeholders told us that a
settlement option would increase the number of miners who would receive
awards and reduce the amount of time it takes to resolve black lung
claims. Still, others have said that such settlements would be
incongruent with the fact that the disease is progressive. Some DOL
officials told us that settlement would cause miners to settle for
award amounts that would be less than what they would be eligible for
once the disease progressed. Others noted that if the program permitted
claimants to be paid through a lump sum settlement, instead of the
current practice of receiving monthly benefit payments, miners might
spend their award before they would most need it.
Other state and federal workers' compensation programs, including the
Longshore and Harbor Workers' Compensation Act, do allow claimants to
settle their claims or to be compensated for partial
disability.[Footnote 49] The West Virginia state workers' compensation
program, among others, also provides the option for claimants to settle
their black lung claim for partial disability. One claimant with whom
we spoke who has been unable to resolve his federal black lung claim
for 8 years was able to receive compensation for partial disability
under the West Virginia workers' compensation program while still
employed as a coal miner. Although this settlement option has been used
in other workers' compensation programs, DOL officials--citing the
prohibition in the statute--said to date, there has been no research
done to evaluate the costs and benefits of offering settlement for
partial disability to black lung claimants.
Coal Miners Face a Number of Challenges in Pursuing Federal Black Lung
Benefits, Including Finding Legal Representation and Developing Sound
Medical Evidence:
Although the Program and DOL Recognize the Importance of Legal
Representation for Miners, DOL Does Not Track, Evaluate, and Report on
Claimants' Access to Legal Representation:
The importance of legal representation for black lung claimants is well
established. The Black Lung Benefits Act recognizes the importance of
claimant representation by providing reasonable fees for claimant
attorneys in the successful prosecution of a claim under the
statute.[Footnote 50] DOL has recognized that the early involvement of
legal representatives in claimants' cases improves the quality of
evidence submitted and the decision making in all claims for
benefits.[Footnote 51] Therefore, DOL issued regulations in 2001 that
provide for compensation of claimant attorneys for all reasonable time,
from the outset of a case, if it ends in an award.[Footnote 52] In a
variety of ways, DOL has also encouraged black lung claimants to seek
representation for the claims they initially file, as well as the
claims they appeal.[Footnote 53] For example, DOL's Web site includes a
claimant resource page that provides representation guidelines for
administrative appeals and identifies a number of lawyer referral
services, including services with the American Bar Association and
legal aid clinics associated with law schools and other nonprofit
organizations. On this Web page, OALJ advises claimants that DOL
adjudications "vary widely in complexity and in many instances it may
be wise to obtain legal counsel." Administrative law judges also use
various means to encourage claimants to seek representation. For
example, some judges provide information about the advantages of
representation in the Notice of Hearing, talk directly to unrepresented
claimants about such advantages at the hearing, or issue a special
letter to unrepresented claimants indicating that black lung cases
often involve complicated legal issues and encouraging them to find
representation. Finally, judges are permitted to grant claimants
additional time in order for them to secure representation before a
hearing.[Footnote 54]
While DOL collects some information about claimant representation, it
does not track, evaluate, or report on claimants' access to legal
representation throughout the claims and appeals process. At our
request, OWCP, OALJ, and BRB provided us with the number of claimants
with legal representation at each stage of the process based on data
captured by their systems. However, due to limitations in data
collection, these numbers were not sufficiently reliable for use in our
report. For example, at the OWCP level, officials told us that some
claimant representation information is captured by an automated
correspondence system, separate from the main data management system,
but that the correspondence system was not designed to track claimant
representation and cannot identify types of representatives and at what
point in the claims process a claimant acquired representation. The
data management systems used by OALJ and BRB capture claimant
representation data, but these data are limited by similar factors. For
example, OALJ's system cannot identify whether a representative is an
attorney or lay representative and at what point in the appeals process
a claimant acquired representation. In addition, BRB officials told us
that their data do not include the number of all appeals filed without
counsel because they do not track legal representation for appeals
filed by nonprofit agencies on the behalf of black lung claimants.
Further, OWCP, OALJ, and BRB officials told us that they do not report
any of the representation information they collect or use it to measure
performance. However, a number of DOL officials told us that finding
representation is a significant challenge for many claimants. For
example, program officials cited claimants' lack of representation,
particularly in the early stages of a claim, as a significant barrier
to successful claims. OALJ officials told us that few attorneys will
represent black lung claimants and that lack of legal representation
limits OALJ's ability to process cases quickly.
Disincentives for Lawyers to Take Claimants' Cases and Scarce Nonprofit
Resources Impede Claimants' Ability to Secure Legal Representation:
There are few financial incentives for lawyers to take black lung
claimants' cases, and claimants generally do not have the financial
resources to cover the costs associated with developing the evidence
needed to support and defend their claims. According to DOL officials,
attorneys are not inclined to take claimants' cases due to a low
probability of success. As noted previously, only 13 percent of all
claims were initially approved by OWCP in fiscal year 2008. Moreover,
while DOL has no official data on the final approval rate after all
appeals are exhausted, black lung experts suggested that the final
award rate is about half of the initial award rate. Other disincentives
DOL officials and claimant attorneys cited are that the process can be
lengthy and costly. For example, one attorney told us that it has taken
as long as 15 years from the start of a black lung case to receive
compensation for working on it.[Footnote 55] Among the significant
legal costs that claimant attorneys said they incur with black lung
cases is the time spent preparing legal briefs and expenses associated
with evidence development, such as preparing medical experts' reports.
Because claimants lack financial resources for evidence development and
DOL's payment of claimant attorneys' fees is contingent on the success
of cases, claimant attorneys bear much of the legal costs during the
litigation of claimants' cases.[Footnote 56] In Black Lung Benefits Act
cases, a claimant may not be charged a fee by an attorney unless black
lung benefits are awarded.[Footnote 57] While no precise estimates of
legal costs for claimant cases were available, based on GAO's analysis
of one law firm's estimated total legal costs for black lung cases,
cases that took roughly between 2 to 4 years to resolve averaged about
$18,000 in total legal costs. This firm also indicated that it has five
unresolved black lung cases that have been active 7 years or more, with
an average cost of at least $70,000 in total accrued legal
costs.[Footnote 58] In contrast to reports of limited representation
available to claimants, DOL officials and representatives from claimant
groups and mine companies said that mine operators tend to have greater
resources to develop black lung evidence.
Various nonprofit organizations offer assistance to claimants, but
their capacity to meet the legal needs of black lung claimants is
limited. A prominent nonprofit legal resource for claimants is a black
lung legal clinic operated by the law school at Washington and Lee
University in Virginia. Currently, the clinic has 42 active black lung
cases, and its operation relies largely on the voluntary efforts of law
professors and their students. Officials told us that the clinic does
not have the resources to provide legal assistance to a larger number
of black lung claimants. Another source of nonprofit legal assistance
for claimants is the federally supported Black Lung Clinics program,
which primarily provides medical services. Serving 14 states, these
clinic; they provide miners with a number of services related to the
diagnosis and treatment of black lung disease. Some clinics are
authorized by DOL to conduct diagnostic testing for the Black Lung
Benefits Program, and clinics are encouraged by the Black Lung Clinics
program to assist miners with their claims through benefit counseling
and legal referral. According to program officials, four clinics
receiving HRSA grants also provide claimants with free lay
representation.[Footnote 59] DOL administrative law judges told us that
some lay representatives have provided miners with effective support
and guidance by helping them understand the claims process and properly
complete the required documentation on time. However, they noted that
lay representatives are better suited to helping claimants with initial
claims than with appeals, which they said generally requires formal
legal training. At one time, the UMWA offered legal representation for
black lung claimants, but UMWA representatives said currently that they
can only refer claimants to outside legal representatives.
Evidentiary Documents Submitted by DOL-Approved Doctors Do Not Always
Provide Sound or Thorough Support for Miner Claims:
DOL administrative law judges and claimant advocates reported that
doctors who have been approved by DOL to conduct diagnostic tests and
provide pulmonary evaluations do not always submit complete medical
documentation.[Footnote 60] DOL judges told us that doctors' medical
opinions are a key element of evidence in claims adjudication and
indicated that most of the opinions submitted by DOL's approved doctors
did not provide claimants with sound evidentiary support for their
cases. In particular, DOL judges told us that doctors' written opinions
frequently lack clarity and specificity on the causal factors of
disease and do not adequately explain their reasons for their
conclusions, if at all.
While DOL has made efforts through its national and district offices to
educate its approved diagnostic providers about documenting medical
evidence for black lung claimants, some claimant doctors and
representatives told us that the program does not consistently provide
doctors with clear guidance for effectively and completely documenting
their medical opinions, particularly with respect to describing the
causes of disease and explaining the basis of their medical
conclusions. In particular, one doctor with experience as a DOL-
approved provider told us that doctors new to DOL's approved list are
often unclear about how to properly document their medical opinions on
DOL's medical evaluation form.[Footnote 61]
While DOL provides supplemental guidelines for doing this, he suggested
that many DOL-approved physicians are not accustomed to the
comprehensive, narrative format required by DOL.[Footnote 62] Program
officials told us that the comprehensive narrative format is necessary
and preferable over forms that solicit discrete responses because of
the complexity of black lung disease and the importance of good
reasoning in developing sound medical evidence. However, according to
one doctor, the narrative portion of the pulmonary evaluation form is
often left incomplete or poorly developed because of its open-ended
structure. In an attempt to improve the clarity and completeness of
medical evaluations, as well as reduce the need for doctor follow-up,
one DOL district office developed a supplemental questionnaire for
soliciting explicit information from doctors and attached it to DOL's
official medical form. According to officials at this district office,
the supplemental form effectively supported their efforts in improving
the quality of medical evidence documented by approved doctors.
However, DOL's national office required the district office to
discontinue using this supplement as a routine form because it had not
been authorized through the Office of Management and Budget.
Text box:
Diagnostic Testing for Black Lung Disease and Associated Disability:
Photo:
Source: Cook County Health and Hospitals System.
In order to determine the presence or absence of black lung disease and
the degree of associated disability, miner-claimants for federal black
lung benefits are required to undergo a series of diagnostic tests,
including a chest X-ray, pulmonary function study (breathing tests),
arterial blood gas study, and a physical examination. Diagnostic tests
are conducted on miners by DOL-approved physicians, and if contested,
by physicians contracted by mine companies or their insurers. The
clinical information reported from diagnostic testing generally
constitutes a significant part of the parties‘ medical evidence in
black lung cases.
Photo:
Source: Cook County Health and Hospitals System.
[End of text box]
The extent to which DOL's district offices hold approved doctors
accountable for the quality of submitted medical evidence is unclear
because DOL does not track whether and how often district offices need
to follow-up with doctors or withhold payment for inadequate medical
documentation. DOL can also remove a doctor from the approved list for
poor performance, including poor quality of documentation and delays in
submitting reports. Since the creation of DOL's approved provider list
in 2001, OWCP has removed four doctors and reinstated one. However, DOL
officials told us they are reluctant to remove doctors because of
challenges in maintaining an adequate number who are qualified to
conduct diagnostic testing for the program. For example, in identifying
recruiting challenges, DOL officials said that some doctors do not want
to expose themselves to cross-examination by attorneys for the mine
employers or their insurers. They also noted that certain geographic
areas present difficulties for finding enough qualified doctors
suitable for the approved list. Consequently, OWCP may use more liberal
standards for evaluating the qualifications of doctors in these areas
to ensure that claimants have access to and, where possible, a choice
between approved doctors. Because of recruiting challenges, DOL
officials said that they prefer to work with approved doctors to
improve the quality of their documentation, rather than remove them
from the approved list.
Blood Gas Testing Practices May Contribute to Inaccurate Disability
Readings for Claimants:
Medical experts with whom we spoke told us that some practices of
conducting blood gas tests, which provide evidence for claimant and RO
parties, may contribute to inaccurate disability readings for
claimants.[Footnote 63] Blood gas tests are required by regulation and
conducted with the miner at rest and, if medically indicated, during
exercise.[Footnote 64] According to one medical expert, inaccurate
readings can result from insufficient intensity or duration of
exercise, poorly executed manual blood draw, prolonged delay between
blood draw and sample analysis, and improperly calibrated diagnostic
equipment, among others things. DOL officials acknowledged that
differences in how doctors conduct blood gas tests may influence test
results. In particular, they stated that using a catheter is more
reliable and, therefore, preferable to a single stick or to manually
drawing blood with a syringe. However, they explained that diagnostic
testing facilities in some areas may not have the capacity to carry out
blood draws using indwelling catheters. They also said that, generally,
they are not able to monitor or control how doctors conduct blood gas
tests. DOL validates the results of all blood gas tests conducted by
its approved doctors. In contrast, officials said they do not have the
authority to validate or require validation of results of tests
conducted by mine operator doctors.
Claimant advocates and representatives from black lung clinics we
interviewed alleged that some doctors working for mine companies or
their insurers conduct blood gas tests in ways that boost claimants'
blood oxygen levels, thereby lowering their disability readings.
Examples they provided include failing to record the pulse rate during
the blood draw, not icing blood samples, shaking blood samples to
aerate them prior to analysis, and allowing significant delays between
drawing and analyzing blood. Program officials acknowledged that they
are aware of such allegations but said they have no way to test the
veracity of these claims or determine the incidence of such practices.
Currently, DOL has no system for logging and tracking complaints it
receives from parties to black lung cases concerning testing practices
of either DOL-approved or RO-hired doctors. Mine industry
representatives with whom we spoke said they are not aware of
complaints or any cases of manipulation.
Conclusions:
The Black Lung Benefits Program remains a significant source of black
lung compensation for the nation's coal miners, but there are a number
of administrative and structural problems that could impede the ability
of eligible miners to pursue claims. First, the high rate of appeals by
both claimants and mine operators and the high number of remands by
OALJ and BRB all prolong the resolution of claims. Although the cause
for these rates is not entirely clear, it is evident that the program's
structure can create financial incentives for both miners and mine
operators to continue to file or extend appeals. Without ways to
streamline or speed the appeals process, expedite hearings for remote
areas, and avoid remands, many claims will likely continue to go
unresolved for years. Yet, because DOL does not track all claims from
initial application through appeals, the agency cannot begin to
accurately assess the scope of this problem or develop strategies to
improve it.
In recent years, few claimants have been able to meet all of the
program's evidentiary requirements, and the current state of black lung
science makes it difficult for claimants to meet certain requirements.
Without a thorough examination of the ability of claimants to meet
evidentiary standards or exploring alternatives to resolving claims,
such as settlement, claimants with meritorious claims may not receive
benefits.
Moreover, many claimants are not equipped with the medical and legal
resources they need to develop evidence that will meet the program's
requirements. While miners must be able to develop sound evidentiary
support for their black lung cases, the medical evidence prepared by
DOL-approved doctors does not consistently provide this support, and
blood gas testing practices may contribute to inaccurate disability
test readings. In the absence of complete and reliable medical evidence
for miners, there is a greater chance that the judges who review the
cases will be presented with medical evidence that is insufficient.
Similarly, without better options for legal representation, significant
numbers of claimants proceed with their claims through a complex and
potentially long administrative process without the resources DOL
officials and black lung experts note are important to developing
evidence and supporting their claims. Yet, DOL does not collect data
that would offer a complete assessment of the scope of this problem.
Absent efforts to re-examine these structural issues and remedy
administrative problems, claimants with meritorious claims will go
without benefits, and delays in the resolution of claims will continue.
Recommendations for Executive Action:
To improve the effectiveness of the Black Lung Benefits Program, we
recommend that the Secretary of Labor undertake the following seven
actions:
1. Take steps to reduce the number of black lung cases remanded from
BRB to OALJ by convening a group to determine the causes of these
remands and develop solutions for reducing their incidence.
2. Obtain summary information on how long it takes to resolve claims
using its current automated system to routinely track cases through the
entire adjudication process and develop associated performance
measures.
3. Consider shortening the time required to schedule hearings for black
lung cases by examining the feasibility of using video teleconferencing
technology to streamline the scheduling of hearings in remote areas.
4. Based on feedback from relevant black lung medical stakeholders,
including approved diagnostic providers and Black Lung Clinics, develop
options for improving how doctors' opinions are documented on DOL's
medical evaluation form.
5. Evaluate and report on claimant access to legal and lay
representation by implementing changes to the data management systems
of OWCP, OALJ, and BRB that will permit accurate data about claimant
representation throughout the claims and appeals process.
6. Evaluate and address blood gas testing practices that may contribute
to inaccurate disability test readings by implementing a feedback
mechanism to record and track complaints from federal black lung claims
stakeholders about testing practices.
7. Examine the following issues and evaluate the potential for
proposing structural changes to the program to Congress:
* options for enhancing incentives for attorneys and lay
representatives to take claimants cases; areas that could be explored
include alternate pay structures for attorneys and an examination of
federal support for lay representation;
* the costs and benefits of allowing compensation for partial
disability and settlement of claims;
* the clinical limitations in documenting evidence to prove
pneumoconiosis; and:
* new and previous proposals to reduce the amount of time it takes to
resolve claims and appeals, including requiring complete evidentiary
development at the primary claims processing phase and limiting the
need for appeals.
Agency Comments and Our Evaluation:
We provided a draft of this report to DOL for review and comment. The
department provided written comments with OWCP, OALJ, and BRB
responding to our report in three separate letters. These letters are
reproduced in appendix II. In its comments, DOL generally agreed with
six of our recommendations, and disagreed with one recommendation. DOL
agreed to take steps to reduce the number of black lung cases remanded
from BRB to OALJ by convening a group to determine the causes of these
remands and develop solutions for reducing their incidence, though BRB
expressed concern that the creation of an "independent panel" would be
inappropriate. In order to respond to BRB's concern, we modified the
language from "independent panel" to "group." We recognize BRB's
judicial independence and authority and the need for the department to
determine the reasons for remands in order to develop solutions to
reduce them. The intent of our recommendation was not to assess or
evaluate BRB's performance.
The department generally disagreed with our recommendation to obtain
information on how long it takes to resolve claims by developing a
mechanism to track cases through the entire adjudication process and
develop associated performance measures. OALJ and OWCP indicated in
their individual responses that the current system does track the
status of each claim and that the system is currently capable of
tracking black lung claims throughout the appeals process. However, DOL
does not currently track how long a claim remains in the adjudications
process as one indicator of performance. We believe that DOL should
leverage the capability of its current automated systems for routinely
tracking such information and develop associated performance measures.
Accordingly, we modified the wording of our recommendation to clarify
this point.
In its response, OWCP provided its own analysis of the time it takes to
resolve black lung claims. However, we were unable to verify the
accuracy of OWCP's analysis because DOL did not provide us with the
data or the calculations used to derive this figure. Moreover, when we
carried out our analysis of time to resolve claims, OWCP stressed the
difficulty of conducting such an analysis and provided us with data,
some of which we found unreliable. It was because of this difficulty
and the lack of reliable data that we focused our analysis on the only
subset of data for which we could reliably determine claim resolution
times--those cases that were ultimately awarded benefits. It also made
sense to examine these cases because: (1) they were the most likely to
be litigated, (2) were, in our opinion, the best available proxy for
how long a litigated claim could remain in the system and (3) because
other types of claims, such as Trust Fund claims, are unlikely to be
appealed. OWCP said it provided its analysis because ours used data
that represented approximately 2 percent of black lung claims that were
filed between 2001 and 2008, according to its data. OWCP did not
provide us with information about how it derived the 2 percent figure,
so we could not verify its accuracy. However, given that few miners who
bring a claim prevail, and we examined those where a miner was awarded
benefits, we recognize that the cases we examined represent a small
part of all claims. In the report, we made clear that these cases were
only a small subset of all cases and that processing times for these
cases could not be generalized. Moreover, even though the claims we
examined represent a minority of claims filed, they are part of the
constituency that the Act sought to ensure would have recourse through
the system. OWCP officials told us that they did not believe that a
global measure of timeliness would improve its ability to measure
performance or provide any other benefit. We disagree and believe that
such a measure would add transparency that might ultimately improve
DOL's processes.
The department concurred with our recommendation to consider shortening
the time required to schedule OALJ hearings. The OALJ supported the
idea that video teleconferencing hearing technology could assist in
expediting hearings in remote locations and used their comments to
begin considering issues related to acquiring such technology.
DOL also agreed with our recommendation to develop options for
improving how doctors' opinions are documented. Though OWCP agreed with
our recommendation, in their comments agency officials emphasized that
any revisions to the form should include a "well-reasoned narrative"
and allow less room for legal challenge from parties, not more.
However, we believe that it is essential for DOL to collect and
consider feedback from stakeholders in their revisions to the form.
In response to our recommendation to collect more specific data for
evaluating claimant access to legal and lay representation, DOL agreed
to enhance their existing systems to begin to track when in the process
a claimant is represented and whether the claimant is represented by an
attorney or lay representative. OALJ, in its individual comments,
disagreed with us on the extent to which claimant representation data
is currently being captured by OALJ. However, we still maintain that
the data provided by OALJ was not sufficiently reliable and that system
enhancements--including the type of representation a claimant secured
and at what point a claimant received that representation (e.g., 1
month, 4 months, or 1 year after an appeal)--are required for DOL to
develop a more accurate assessment of the level of claimant access to
representation.
DOL also stated that it would expand its existing medical provider
database to include records of complaints in response to our
recommendation to implement a feedback mechanism to record and track
complaints from black lung program stakeholders about testing
practices. Though they generally agreed with our recommendation, OWCP
expressed concern that an increase in complaints could discourage even
good doctors from remaining on DOL's list of approved medical
providers. However, the purpose of our recommendation is not to
penalize good doctors, but for DOL to begin to track complaints so that
the agency can begin to understand the extent to which disability
testing errors occur with DOL-approved doctors as well as mine company-
hired doctors.
DOL also agreed with our recommendation to evaluate the potential for
proposing structural changes to the program to Congress. In response to
our recommendation, both OWCP and OALJ used their comments to begin an
examination of potential options for consideration for legislative
changes. DOL also submitted technical changes to a draft of the report,
which we incorporated into the report as appropriate.
We are sending copies of this report to the Secretary of Labor,
relevant congressional committees, and other interested parties. In
addition, the report will be available at no charge on GAO's Web site
at [hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-7215 or sherrilla@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on last page of this report. GAO staff who made key contributions to
this report are listed in appendix III.
Sincerely yours,
Signed by:
Andrew Sherrill:
Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
To gain insight in to the administration of the Black Lung Benefits
Program, we examined (1) how long it takes to process and resolve black
lung benefits claims; (2) at what rate and for what reasons black lung
claims and appeals are denied by; and (3) what barriers, if any,
confront miners or their survivors in pursuing their claims.
To determine how long it takes to process black lung benefits claims,
we collected data from the Office of Workers' Compensation Programs
(OWCP) Automated Support Package claims tracking system, Office of
Administrative Law Judges (OALJ) Case Tracking System, and the Benefits
Review Board (BRB) Prime Appeals Tracking System. We assessed the
reliability of OWCP, OALJ, and BRB data by (1) performing electronic
testing of required data elements, (2) reviewing existing information
about the data and the system that produced them, and (3) interviewing
agency officials knowledgeable about the data. We also obtained
processing data from performance reports from each of the three
agencies. We determined that the data were sufficiently reliable for
the purposes of this report. To establish criteria, the team compared
current black lung claims and appeals processing times to the program's
past performance and to agency and Office of Management and Budget
performance goals. In addition to conducting data analysis, the team
conducted interviews with officials from OWCP, OALJ, and BRB.
To determine how long claims remain in the claims and appeals process,
we collected data from the OWCP Automated Support Package claims
tracking system. However, DOL does not track how long all claims remain
in the claims and appeals process. DOL officials cited three primary
reasons for not doing so: each body of the program maintains
independence and does not share similar administrative; OWCP's claimant
tracking system was designed, in part, to ensure that claimants are
paid, not to determine how long claims remain in the process; and
determining how long claims remain in the claims and appeals process
can be challenging because it is difficult to determine what
constitutes a claims resolution. For these reasons, we were only able
to determine how long claims persisted in the claims and appeals
process for one subset of claimants: miners for whom a responsible mine
operator (RO) ultimately paid benefits.[Footnote 65] Although DOL
provided data on other claimants, such as miners' widows who were
awarded benefits, the data were not sufficiently reliable to determine
the time to resolve these claims. We attempted to determine if newer
claims were resolved at different rates than older claims and how two
major regulatory changes to the program instituted in 1981 and 2001
affected claim resolution times.[Footnote 66] However, our report
focused on claims filed between January 19, 2001, and December 31,
2008, because DOL officials said that these claims more accurately
reflected how long claims persist in the current claims and appeals
process. We determined the time that claims persisted in the process by
measuring the date of the initial claim application to the date when a
RO agreed to pay benefits.[Footnote 67] Our examination assessed two
cohorts: 3,073 claims filed between January 2, 1982, and January 19,
2001, and 763 claims filed between January 20, 2001, and December 31,
2008. However, many claims filed between 2001 and 2008 are still in the
claims and appeals process and hence could not be measured. Therefore,
the time calculated to resolve these newer claims may not be fully
representative of the time necessary to resolve the claims and appeals
process.
To determine the rates at which black lung claims and appeals are
denied by DOL, we collected case tracking data from OWCP, OALJ, and
BRB. OWCP was able to provide us with data tracking the number of
denials, and we used these data to determine the OWCP denial rate. OALJ
and BRB do not keep such data. To determine the OALJ and BRB denial
rates, we reviewed all fiscal year 2008 OALJ and BRB case documents
from a list generated from the agencies' respective case tracking
systems. We calculated the number of denials and the total number of
cases and then computed a denial rate. To determine the reasons that
black lung claims were denied, we collected data from OWCP's case
tracking system that captures the reasons for denials. Neither OALJ nor
BRB track the ; therefore, to establish the reasons why black lung
appeals were denied, we selected random probability samples of all
black lung OALJ and BRB appeals cases decided and denied in fiscal year
2008, recorded the results of this analysis into a data collection
instrument, and projected the results onto the population. We sampled
85 cases for OALJ and 76 cases for BRB. All percentage estimates in
this report from these samples have a margin of error of plus or minus
10 percentage points or less at the 95 percent confidence level, unless
otherwise noted. In addition to our data analysis, the team also
conducted interviews with officials from OWCP, OALJ, BRB, and the
National Institute for Occupational Safety and Health (NIOSH).
To understand the barriers that claimants face in pursuing federal
black lung benefits, we conducted interviews with key officials and
experts at DOL and other relevant federal agencies, representatives
with national, regional, and local organizations that focus on issues
or provide support services related to black lung disease and
associated disability, as well as local stakeholders who are involved
in federal black lung claims on behalf of miner-claimants. At DOL, we
interviewed officials with OWCP, OALJ, and BRB and officials and
experts with NIOSH, the Centers for Disease Control and Prevention, and
the Health Resources and Services Administration. We interviewed
representatives from national organizations, including the National
Mining Association, the United Mine Workers of America, and the
National Coalition of Black Lung and Respiratory Disease Clinics. At
the regional and local levels, we interviewed representatives of
federal grant-supported Black Lung Clinics, Washington and Lee
University's black lung legal clinic, as well as miner-claimants and a
range of local black lung stakeholders, including doctors, outreach
workers, lawyers, and lay representatives.
In our interviews, we collected information about factors that
facilitate and hinder miners' pursuit of federal black lung benefits,
including the availability and adequacy of relevant medical and legal
services to miners. Our interviews with DOL officials specifically
focused on the department's policies, procedures, and guidance for
providing or assisting claimants with identifying such services, as
well as their views on the effectiveness of such services in assisting
claimants to develop sound evidence for their cases. Our interviews
with miner-claimants and local black lung stakeholders, including Black
Lung Clinic personnel, were organized as site visits to southern West
Virginia and eastern Kentucky. These states and regions were selected
because they have (1) high levels of miner death related to black lung
disease,[Footnote 68] (2) a large volume of federal black lung
claims,[Footnote 69] and (3) estimates of black lung-related resources
and services.[Footnote 70] The site visits provided valuable
information about the challenges miners face in pursuing federal black
lung benefits from the perspective of claimants, as well as local black
lung stakeholders who have worked closely with claimants. In addition,
we reviewed relevant federal statutes, regulations, administrative
cases, and court cases.
We conducted this performance audit from October 2008 to October 2009
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient and appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.
[End of section]
Appendix II: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Employment Standards:
Washington, D.C. 20210:
September 30, 2009:
Andrew Sherrill:
Director:
Education, Workforce, and Income Security Issues:
United States Government Accountability Office:
441 G Street, NW:
Washington, DC 20548
Dear Director Sherrill:
Thank you for the opportunity to comment on your Draft Report No. GAO-
10-7, Black Lung Benefits Program: Administrative and Structural
Changes Could Improve Miners' Ability to Pursue Claims. Although OWCP
agrees with several of its recommendations, we have two major concerns.
First, we believe that GAO's statements in the narrative underestimate
the scope of the Automated Support Package (ASP) which is used by the
Office of Workers' Compensation Programs' (OWCP) to record data about
claims for black lung benefits. Claims are tracked throughout the
claims process ” including initial processing in OWCP, referrals to and
from the Office of Administrative Law Judges (OAU), the Benefits Review
Board (BRB), the US Circuit Courts of Appeals, and the US Supreme
Court -- and ASP tracks the outcomes of the decisions rendered by those
bodies. OWCP is the official repository of every claim filed under Part
C of the Act, and as such it must maintain claims information to ensure
that decisions on claims in all stages of the process are recorded and
implemented.
As illustrated by the chart below, OWCP can calculate the time interval
between claims receipt and disposition. The same analytical ability can
be applied to calculate time intervals between all stages in the claims
resolution process, and is used extensively by OWCP to monitor its
development and adjudication processes. GAO faults the OWCP system for
the absence of detailed records of the representation of claimants by
attorneys and lay representatives or a log of complaints about
diagnostic physicians. OWCP acknowledges that its system does not now
have the capability to perform these functions, but they can be added
relatively easily to OWCP's records management system. But the OWCP
data system does capture and track the status of each claim.
Second, we are concerned that GAO has selected for its study a small
subset of claimants that is unrepresentative of the overall population
the Department actually serves. GAO has selected miners' claims filed
between 2001 - 2008 for which a private party was potentially liable
that have been ultimately awarded, a grouping which represents
approximately 2% of the total claims filed during that period. The
report states that this cohort of claims was selected because it
represents the cases most likely to be litigated; because of that
tendency, a significant portion of these claims took several years to
reach an award. However, an analysis of all claims decided during that
period shows that only-0.91% took over 6 years to be resolved. GAO's -
sample consisted of 763 claims out of 32,626 (not including the
automatic continuation of benefits to dependent survivors of miners
whose awarded claims were filed before January 1, 1982). A more
representative graph, showing all claims filed in that period, is
attached below:
Figure: Time to Resolution of All Claims Filed 2001-2008:
[Refer to PDF for image: Vertical bar graph]
Years to Resolution: Less than 1;
65.37%;
25,978.
Years to Resolution: 1-2;
20.48%;
8,139.
Years to Resolution: 2-3;
5.69%;
2,261.
Years to Resolution: 3-4;
3.89%;
1,545.
Years to Resolution: 4-5;
2.46%;
979.
Years to Resolution: 5-6;
1.20%;
478.
Years to Resolution: More than 6;
0.91%;
362.
[End of figure]
Further, certain clarifications are in order. On the first page, GAO
states that the Black Lung Program provides $250 million in benefits to
40,000 beneficiaries. In fact, OWCP also administers Part B of the
program, which distributed an additional $262 million in black lung
benefits to over 33,000 disabled miners and their survivors in FY 2008.
Those benefits are funded from the general revenues rather than the
Trust Fund. On page 10, the phrase "claims can be appealed and modified
up to a year after a decision" should read "modification may be
requested up to one year after a decision denying benefits and may also
be requested by any party up until one year after the last payment of
benefits." The statement in the notes to Figure 2 that modification can
be requested "for up to a year after initial payment" is also
inaccurate and should be replaced. Footnote 2 fails to mention that
Federal black lung benefits are only offset by state workers
compensation or other disability benefits which are awarded for the
same disease. Footnote 46 on page 19 reads "By regulation, there is an
irrebuttable presumption of pneumoconiosis...." This should read "By
statute, there is an irrebuttable presumption of total disability due
to pneumoconiosis if X-rays of the miner's lungs show a spot or lesion
that is greater than 1 centimeter in diameter. 30 U.S.C. §921 [Sec.
411(c)(3)]." The regulation cited by GAO merely parallels the statutory
language. Similarly, in footnote 11, which addresses the irrebuttable
presumption, the phrase "present with" should be replaced with "have x-
ray evidence of." On the opening "Highlights" page, GAO states that the
"regulations require that claimants prove that their condition is
primarily caused by coal dust." In truth, a claimant need only
establish that his lung disease is "significantly related to or
substantially aggravated by" coal dust, a less stringent standard (20
CFR §718.201(b). Footnote 3 appears to limit black lung to only two
diseases, clinical pneumoconiosis and chronic obstructive pulmonary
disease. The Act and regulations expansively define coal workers'
pneumoconiosis as any chronic lung disease arising out of coal mine
employment and its sequelae (30 U.S.C. §902(b); 20 C.F.R. §
718.201(a)). Finally, footnote 10 incorrectly implies that if a miner
has 10 years of coal mine employment any lung disease he has will be
presumed to be due to that employment. This presumption applies only to
miners suffering from clinical pneumoconiosis.
Finally, we would like to address the Recommendations for Executive
Action that specifically concern OWCP.
Regarding recommendation 2), OWCP already tracks the times required to
perform each of the stages of its claims development and adjudication
processes, has established timeliness goals for them and continues to
make significant progress in reducing the times required for their
completion. The OALJ and BRB also have established goals for the
performance of their roles in the hearings and appeals process. While
we are able to track all portions, we do not believe that development
of an overall global measure from receipt of claim to disposition would
contribute more to the goal of timely disposition of claims than is
currently being achieved through the efforts to complete each stage in
the adjudication process in a more timely manner.
Regarding 4), GAO believes that OWCP should "develop options for
improving how doctor's opinions are documented...." OWCP agrees, and
believes that GAO's recommendation for obtaining feedback from
stakeholders has great merit. OWCP shares GAO's concern about how its
diagnostic physicians document their diagnoses and opinions, and has
made a strenuous effort to educate doctors on the need to ensure that
their findings are supported by test results. OWCP district office and
national office staff have worked closely with physicians when
questions have been raised about the adequacy of their reports. The
difficult question of how much explanation the physician should supply
has been addressed in the recent Court of Appeals decision in Greene v.
King James Coal Mining Inc.. 575 F.3d 628 (6th Cir. July 30, 2009),
which found that a doctor's opinion that addresses all the elements
necessary for entitlement is sufficient even if it is not persuasive.
Because the regulations provide that totally disabling "legal
pneumoconiosis" is compensable just as is "clinical pneumoconiosis,"
OWCP is apprehensive about not requiring the physician to write a well-
reasoned narrative that includes a determination of the miner's
disability due to a chronic dust disease of the lungs that may not
evince the classic radiological findings of pulmonary fibrosis. OWCP
wants to ensure that any reporting form that evolves from such feedback
allows less room for challenge, not more.
Regarding recommendation 5), OWCP recognizes the need for more specific
data concerning representation of claimants and is initiating
enhancements to its case management system to capture additional
information about representation, including a delineation of lay or
attorney and beginning and ending dates of representation.
Regarding recommendation 6), analysis of an ABG test requires
sophisticated technical knowledge and equipment, and it is not
reasonable to expect a claimant (or any patient) to be able to
determine if the test was administered in compliance with the
regulations (20 C.F.R. § 718.105.) OWCP is concerned that allegations
against and investigations of DOL-authorized physicians, even if
unfounded, may drive good doctors out of the program. Nevertheless, the
National Office of OWCP/DCMWC does have a database of medical providers
and will expand it to include a record of complaints from claimants and
other parties reported to District Offices and the actions taken to
resolve-them.
In recommendation 7), GAO suggests the consideration of several changes
to the Act, and OWCP will review all the GAO recommendations for
potential legislative reform. OWCP notes that several of these
recommendations, including alternate pay structures for attorneys and
requiring complete evidentiary development at the initial phase of
claims processing, were proposed in earlier black lung rulemakings. The
Department carefully explained its ultimate conclusions in the preamble
to the Final Rule that became effective on January 20, 2001. Also,
Congress considered settlements and compensation for partial disability
at the time of the original legislation and 'rejected it because it
recognized the unequal bargaining power of ill, elderly miners when
confronted with the resources of major mining and insurance companies.
The purpose of the Act is to provide a lifetime of income maintenance
to disabled-miners and their dependent survivors, and one of its unique
features is the provision of interim benefits to eligible claimants
during the pendency of prolonged challenges to their entitlement. Under
state workers' compensation systems, lump-sum settlements and partial
benefits are frequently exhausted within a short period (a typical
example of a state award is compensation for 104 weeks), and may run
out long before the miner's pneumoconiosis progresses to the point of
total disability which would permit the lifetime award mandated by the
Act. At the end of FY 2008 less than 9% of aWarded miners had any
offsetting state workers' compensation award for the same disease.
Although state workers' compensation benefits for total disability due
to black lung disease are more generous than the Federal benefits, the
laws of the all of the major coal producing states impose more
stringent criteria for their receipt than does the Federal program.
Thank you again for the opportunity to respond to this report.
Sincerely,
Signed by:
Shelby Hallmark:
Acting Assistant Secretary:
U.S. Department of Labor:
Office of Administrative Law Judges:
800 K Street, NW, Suite 400-N:
Washington, DC 20001-8002:
(202) 693-7300:
(202) 693-7365 (FAX):
September 30, 2009:
Andrew Sherrill:
Director
Education, Workforce, and Income Security Issues United States
Government Accountability Office 441 G Street, NW
Washington, DC 20548:
Dear Director Sherrill:
Thank you for the opportunity to comment on the Draft Report No. GAO-10-
7, Black Lung Benefits "Program: Administrative and Structural Changes
Could Improve Miners' Ability to Pursue Claims. The efforts of you and
your staff in preparing this important report are appreciated, and the
Office of Administrative Law 'Judges (OALJ) welcomes an examination of
the claims process under the Black Lung Benefits Act OALJ is in general
agreement with the report's conclusions and recommendations, and offers
only a few clarifications and comments.
Comments on Recommendations for Executive Action:
1. Development of mechanism for tracking claims throughout the
adjudication:
OALJ concurs with the Office of Workers' Compensation Programs (OWCP)
comments on this recommendation. The existing computerized case
tracking systems for OALJ, OWCP and the Benefits Review Board (BRB) are
designed to meet unique needs of each of those agencies. OALJ
recommends that any initiative for developing a method to track claims
throughout each stage of the adjudication should focus on leveraging
information from the existing systems, rather than creating a new
system or consolidating the existing systems.
2. Examination of feasibility of using video teleconferencing
technology:
OALJ concurs that video-hearing technology could assist in expediting
the scheduling of hearings on those occasions when the hearing location
cannot be easily combined with other cases on an Administrative Law
Judge's docket.
The Social Security Administration (SSA) has used video-hearing
technology successfully in adjudications, and is presently expanding
its use of that technology. OALJ has followed SSA's video-hearing
program and those of other agencies and courts, examined video hearing
technology at the College of William and Mary School of Law's Center
for Legal and Court Technology, and conducted a few video hearings.
Consequently, we recognize that video technology has the capacity under
the proper circumstances for facilitating a timely and fair hearing,
and would welcome the opportunity to do a more formal examination of
whether video- hearings would assist the hearing process at the
Department of Labor.
OALJ's experience with black lung adjudications, however, suggests that
video technology may be of limited value in the Black Lung Benefits
Program Notably, a vast majority of black lung hearings are conducted
in the coal mining regions of the United States and claims in these
areas are scheduled regularly throughout the fiscal year On the other
hand, the number of cases delayed because the hearing location is
remote is relatively low.
For hearings conducted in remote locations, OALJ is uncertain whether
video conferencing technology will be available or easily accessible.
Presently, less expensive alternatives have been employed by OALJ to
adjudicate these claims. For example, Administrative Law Judges have
conducted telephonic hearings on request of the parties. The
transcripts from these hearings become part of the formal record. Also,
on agreement of the parties, Administrative Law Judges have issued
decisions "on the record." In such cases, the parties submit their
medical evidence, affidavits, and arguments to the Administrative Law
Judge who, in turn, issues a decision based on the documentation.
3. Development of mechanism for evaluating claimants' access to legal
and lay representation:
The report concludes that some adjudicatory delays related to
claimants' difficulty in finding legal representation could be better
evaluated by implementing changes to the data management systems of
OWCP, OALJ and the BRB. The reason for this recommendation appears to
be GAO's finding that the Department's systems could not produce data
in the format GAO needed for its report. For example, OALJ's existing
system could not identify when in the process a representative was
obtained by the claimant, or whether the representative was an attorney
or a lay representative.
Enhancements could be made to OALJ's case tracking system to record
such information. We are not certain, however, how recording and
reporting this information in a database would assist in remedying the
problem of lack of representation.[Footnote 71] Rather, we suggest that
this is already a well understood problem and that the focus should be
examining whether incentives for attracting more attorneys and lay
representatives to represent claimants is warranted.
4. Requiring complete evidentiary development at the primary processing
phase:
The report recommends evaluation of "[n]ew and previous proposals...
requiring complete evidentiary development at the primary claims
processing phase and limiting the need for appeals." By law, black lung
hearings must be conducted in accordance with the Administrative
Procedure Act, which ensures full and fair adjudications of claims.
Black lung hearings are adversarial. Employers and carriers, with rare
exception, are represented by counsel and have resources to develop
evidence. Consequently, closing the record at the OWCP level may have
the unintended effect of lowering a claimant's opportunity to
successfully prosecute his or her claim. Allowing evidentiary
development by the parties at the OALJ level, and continuing to allow
access to a formal hearing before an Administrative Law Judge, is
essential to a fair hearing process.
Further, as the system is presently constituted, it is unnecessary for
employers or carriers to expend resources at the OWCP level if the
Department-sponsored examination under 20 C.F.R. § 725.406 is
unfavorable to the miner. Indeed, as noted in the report, "about 80
percent of all claims decided by OWCP annually have no requests for
further action."[Footnote 72] This high rate of resolutions at the
informal OWCP level militates against the necessity of forcing parties
to develop all medical evidence at that level.
General Comments:
1. Weighing the medical opinions in a claim:
The draft report states that Administrative Law Judges rely on "non-
clinical" evidence such as physician credentials, length of depositions
or reports, and level of sophistication of the medical reports in
determining entitlement.
To be clear, the "clinical" evidence in a claim, which includes chest x-
rays, autopsies or biopsies, CT-scans, and expert medical opinions
based on a records review or examination of the miner dictate the
outcome of a claim. In each and every decision issued by an
Administrative Law Judge on the merits of a claim (as opposed to
withdrawals, dismissals, or the like), the Administrative Law Judge
specifically addresses each piece of "clinical" evidence submitted by
all parties in compliance with the evidentiary limitations at 20 C.F.R.
§ 725.414.
As in other workers' compensation programs, claims arising in this
program often involve a "battle of the experts," Therefore,
Administrative Law Judges are required by law to consider a physician's
credentials as well as how well-reasoned and well-documented a
physician's opinion is compared to the credentials and opinions of
other experts in the claim. This has nothing to do with the length of a
report or deposition; rather, it has to do with whether the physician's
rationale and conclusions are supported by testing, symptoms, work and
smoking histories, and examination results. Opinions that are better
supported and better reasoned by credentialed physicians will be
accorded greater weight by the Administrative Law Judge.
2. Delay tactics:
The report states that some claimants and employers may have incentives
to prolong the claims adjudication process. Parties should well note,
however, that Administrative Law Judges have little tolerance for delay
tactics that may be utilized by either party and they will deny
requests for continuances that do not have a reasonable basis, or that
have become excessive in number.
Claimants who fail to cooperate during discovery in violation of an
Administrative law judge's order, or who fail to attend their scheduled
hearing, risk having their claims dismissed. Similarly, employers or
carriers who violate an Administrative Law Judge's discovery orders, or
fail to attend a scheduled hearing, risk having their evidence excluded
and the claim decided on the basis of the Department-sponsored
examination and evidence presented by the claimant.
The draft report states that some mine operators deliberately wait to
submit their medical evidence until after the miner has submitted
evidence and, often, such evidence is submitted just prior to the
hearing. Certain safeguards are built into the regulations to protect
claimants from consequences of this conduct. First, in every claim set
for hearing, the Administrative Law Judge issues a "Notice of Hearing"
that sets forth specific deadlines for submitting evidence. If any
party fails to comply with these deadlines, then the Administrative Law
Judge may exclude the late evidence. Moreover, pursuant to 20 C.F.R.. §
725.456(b)(3), the parties are required to exchange medical evidence at
least 20 days prior to the date of the hearing. Failure to comply with
this requirement may lead the Administrative Law Judge to exclude the
proffered evidence.
There are times, however, when scheduling a physical examination, or
taking a physician's deposition is difficult due to time constraints on
the parties and experts. By regulation, any party may depose its
medical expert prior to the hearing, or have the expert testify at the
hearing. At certain hearing locations, it is common for claimants to
have physicians testify at the hearing in support of entitlement to
benefits. In cases where evidence is submitted on the eve of the
hearing or at the hearing, Administrative Law Judges may allow
development of post-hearing evidence so that no party is disadvantaged,
provided the Administrative Law Judge does not find improper motive in
submission of the evidence.
Again, thank you for the opportunity to comment on the draft report. If
you require any further information, please contact us at anytime.
Sincerely,
Signed by:
John M. Vittone:
Chief Administrative Law Judge
U.S. Department of Labor:
Benefits Review Board:
P.O. Box 37601:
Washington, DC 20013-7601:
September 21, 2009:
Andrew Sherrill:
Director:
Education, Workforce, and Income Issues:
United States Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Director Sherrill:
Thank you for the opportunity to comment on the Draft Report No. GAO-10-
7, Black Lung Benefits Program: Administrative and Structural Changes
Could Improve Miners Ability to Pursue Claims. The effort of your
staff, in addressing this important issue as well as the professional
manner in which the information was acquired 'to review the complex
statutory and regulatory claims process is appreciated. The Benefits
Review Board (BRB) is in general agreement with the report's conclusion
and BRB'recommendations and offers only a few comments for
clarification purposes.
Comments on BRB's Role in Adjudication of Miner's Claims:
The report provides analysis that is incomplete with respect to the
BRB's statutorily-created standard of review for final decisions on
appeal from the Office of the Administrative Law Judges under the
Longshore Act and the Black Lung Act.
Pursuant to Section 21(b)(3), 33 U.S.C. §921(b)(3) of the Longshore and
Harbor Workers' Compensation Act, as incorporated into the Black Lung
Act by Section 422, 30 U.S.C.§932, the BRB is charged with reviewing
the findings of fact and conclusions of law of administrative law
judges (ALJs) in cases on appeal before it. If substantial evidence
supports the findings of fact, and those findings of fact are
consistent with ALJ applicable law, the ALJ's decision is affirmed; if
not, the case is remanded to the ALI to correct the errors.
The GAO report finds that approximately one-third (33%) of the BRB's
decisions are remands and that the Board affirms denials in 46% of the
ALJ's it considers. It follows that in approximately 20% of cases, the
BRB affirms the ALJ's award of benefits. In addition, the Board
reverses the ALJ's Decision and Order as a matter of law in
approximately 1% of the cases it considers. In cases of affirmance, the
BRB is affirming the findings of the whether an award or denial. To
suggest that the Board remands cases for procedural matters is simply
not true. Historic consistent appeal rates from the BRB to the U.S.
Court of Appeals (10%) and affirmance of BRB decisions by the U.S.
Court of Appeals (85-90%) confirm this. The BRB reviews ALJs' findings
of fact for substantial evidence, and affirms them if they are rational
and consistent with applicable law, in accordance with the
Administrative Procedure Act. The BRB is a creature of statute with
limited authority, as set forth above.
Comments on Recommendation for Executive Action:
Recommendation 1: BRB believes "creation of an independent panel" is
inappropriate. The BRB is a statutorily created independent quasi-
judicial body with responsibility to review the cases appealed to it,
pursuant to a statutorily created standard of review.
However, if the purpose of the recommendation is to analyze the reasons
for the remand of cases, GAO is advised that the Board maintains a
complete library of its issued decisions, both on the web and in hard
copy. A study of the reasons for remand is possible by reviewing those
decisions and cataloguing the rationale provided in each case in
support of remand.
General Comments:
Page 7- Figure 2.
the second block down, under "BRB in Figure 2," "In the Overview of
the Black Lung Claims Adjudication Process," The Board's actions also
include "Remanding."
Page 10- Issue of Appeal / Modification.
The report suggests that the time for filing both an appeal and a
request for modification is one year. The time for filing an appeal and
time for filing a request for modification are 30 or 60 days, and one
year, respectively. An appeal and a modification request are two
separate legal actions with respect to a case. The statutory authority
to seek modification within one year of any action on a claim extends
the timeline for resolution of a claim.
Page 14- Remand:
For the record, the Board notes its disagreement with comments
attributable to "some ALJ's" regarding the purpose of BRB remands.
Page 21 - Legal Representation:
The report correctly expresses concern over the lack of legal
representation for claimants pursuing claims. However, the report does
not reflect any of the discussions held with the audit team regarding
BRB's standard of review in an appeal where a claimant does not have an
attorney. When an appeal is filed by a claimant without an attorney (a
pro se appeal) the Board provides a complete substantial evidence
review on all issues of fact and law pertinent to the ALJ's decision.
In many cases this results in an ALJ denial of benefits being remanded
for reconsideration of whether claimant is entitled benefits.
Sincerely,
Signed by:
Nancy S. Dolder:
Chairman of the Board and Chief Administrative Appeals Judge:
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Andrew Sherrill, (202) 512-7215 or sherrilla@gao.gov:
Acknowledgments:
Patrick Dibattista (Assistant Director) and Michelle Bracy (analyst-in-
charge) managed all aspects of the assignment. Edward Bodine,
Christopher Lyons, and Brenda Muņoz made significant contributions to
this report, in all aspects of the work. In addition, James Ashley,
Cynthia Grant, and Jean McSween provided technical support in design
and method; Doreen Feldman and Roger; James Bennett and Susan Bernstein
assisted in the ; and Jeff Miller assisted with quality assurance.
[End of section]
(130892):
[End of section]
Footnotes:
[1] Title IV of the Federal Coal Mine Health and Safety Act of 1969
(Pub. L. No. 91-173), as amended, 30 U.S.C. § 901, et seq., commonly
referred to as the Black Lung Benefits Act.
[2] Monthly income payments can range from $616 to $1,232.60 and vary
by the number of dependents claimed by a miner. Black lung income
payment amounts may only be offset by other state workers' compensation
or other federal disability payments, which are awarded for the same
disease.
[3] Black lung is a term that includes coal workers' pneumoconiosis and
any other chronic respiratory or pulmonary impairment arising out of
coal mine employment. 30 U.S.C.§ 902 (b). The statistics on black lung
disease included in the background section of this report refer to CWP
only.
[4] These data were extracted from the National Occupational
Respiratory Mortality System administered by the U.S. Department of
Health and Human Services, Public Health Service, Centers for Disease
Control and Prevention, and the Surveillance Branch of NIOSH's Division
of Respiratory Disease Studies at [hyperlink,
http://webappa.cdc.gov/ords/norms.html] (accessed, August 3, 2009). The
Web site provides data on deaths from 1968 to 2005.
[5] NIOSH collects information on the prevalence of black lung disease
among underground coal miners through its Coal Workers' Health
Surveillance Program and Enhanced Coal Workers' Health Surveillance
Program. According to NIOSH, about 30 percent of underground coal
miners participate in these black lung screening programs.
[6] These percentages represent underground coal miners who
participated in the Coal Workers' Health Surveillance Program.
[7] According to the Department of Energy, the state of Wyoming mines
the most coal, followed by West Virginia, Kentucky, Pennsylvania, and
Texas.
[8] These data reflect the number of coal mine workers in 2007. This
number includes mine contractors and excludes office employees working
at coal mines.
[9] Benefits are also provided to eligible survivors of miners whose
death was due to black lung disease. 20 C.F.R. § 718.205 (2009).
Federal black lung benefits are offset by state workers' compensation
benefits for the same disease. If state black lung benefits are less
than federal black lung benefits, then the federal black lung program
covers the difference. Social Security disability benefits are also
reduced by the amount of black lung benefits received. 20 C.F.R. §
725.535 (2009).
[10] For a miner with 10 years of coal mine employment and who suffers
from CWP, there is a rebuttable presumption that the miner's lung
disease resulted from coal mine employment.
[11] For miners who have X-ray evidence of lesions and/or scarring on
their lungs greater than 1 centimeter, there is an irrebuttable
presumption that the miner is totally disabled due to pneumoconiosis.
[12] Claimant refers to the miner or the miner's eligible survivor. For
the purposes of this report, we will use the word "claimant" to refer
to both miners and the miners' eligible survivors, unless otherwise
noted.
[13] The trust fund pays the cost of black lung claims: (1) where the
miner's last coal mine employment was before January 1, 1970; (2) where
no responsible coal mine operator has been identified in claims where
the miner's last coal employment was after December 31, 1969; or; or
(3) where the responsible mine operator has defaulted on the payment of
such benefits.
[14] Until recently, the trust fund was in chronic deficit--expending
more than what it collected in taxes--but the Emergency Economic
Stabilization Act of 2008 (Pub. L. No. 110-343) provided an
appropriation to repay a portion of the fund, and permitted DOL to
restructure and retire the remaining debt.
[15] OWCP, OALJ, and BRB also administer and review claims arising
under other statutes and programs, including the Longshore and Harbor
Workers' Compensation Act.
[16] For ease of discussion, this report will refer to requests for an
administrative law judge hearing as an "appeal."
[17] 30 U.S.C.§ 923 and 20 C.F.R. § 725.406 (2009).
[18] Currently, there are 177 doctors practicing in 111 different
medical facilities on DOL's authorized list.
[19] 20 C.F.R. § 725.409 (2009).
[20] DOL regulations also direct how claims are to be handled in the
event that the miner dies of pneumoconiosis before a claim is filed.
See, e.g., 20 C.F.R. § 718.104 (c) and 20 C.F.R. § 718.205 (d).
[21] 20 C.F.R. § 725.414 (2009).
[22] Performance goals vary across OWCP, OALJ, and BRB because,
according to DOL officials, the goals are independently established.
[23] According to an independent study commissioned by DOL, in recent
years OWCP has reduced the average time it takes to decide claims from
323 days in FY 2004 to 250 days in 2006.
[24] Using these data, our analysis could not determine whether or not
further action had been requested within 1 year of the decision date.
Under the program, any party (claimant or mine operator) may petition
an OWCP district director for modification within 1 year of the last
payment of benefits or denial of a claim. 20 C.F.R. § 725.310 (2009).
Our examination did not determine whether or not a claim was modified
after a RO agreed to pay benefits.
[25] For additional information on the analysis conducted, see appendix
I.
[26] We also examined 3,073 claims submitted between 1982 and 2000,
where a miner was ultimately awarded benefits by an RO. Mine companies
agreed to pay benefits in 3 years or less for about 47 percent of
claims, between 3 and 6 years for 34 percent, and between 6 and 20 or
more years for roughly 19 percent of claims. However, using the data
that DOL provided, we were not able to determine if, or how many,
claims were subsequently modified. According to DOL officials, some
claimants may have been receiving payments from an RO for several
years, only then to have those payments challenged in court. For
example, a claimant may have begun receiving payments from an RO in
1982, but in 2002, the mine company filed a modification alleging that
they should not have been designated as the company responsible for the
payment of benefits. In such a case, under our analysis, it may appear
that an RO did not agree to pay benefits for 20 years.
[27] DOL officials said that awarded claims--where an RO is identified-
-are often appealed by mine companies.
[28] DOL officials also said that the adjudication of all claims in the
program was held up for nearly a year because of a judicial stay issued
in 2001. Consequently, the processing and adjudication of claims in
2001 was delayed due to circumstances beyond DOL's control. 65 Fed.
Reg. 79920 (Dec. 20, 2000).
[29] If an award is contested, claimants receive interim benefits while
their claims are in the appeals process. 20 C.F.R. § 725.420 (2009).
However, according to DOL officials, claimants who appeal denied claims
typically do not receive interim benefits.
[30] A claim may be appealed by a miner or a miner's eligible survivors
(e.g., a surviving spouse or dependents), an RO, the insurance carrier,
or by a district director. 20 C.F.R. § 725.360 (2009). According to DOL
officials, a third-party administrator may also appeal a claim on
behalf of a mine company. Third-party administrators manage the claims
process for insurance carriers or self-insured employers by providing
services such as claims administration, investigation, insurance
negotiations, accounting, legal, and claim loss analysis.
[31] DOL officials said that miners or their dependents occasionally
appeal claims awarding benefits because of disputes over the size of
the monetary award, the timing of payment, or other issues.
[32] The percentage of claims appealed for fiscal year 2008 do not
include claims that were abandoned, withdrawn, or where no RO was
identified.
[33] OALJ may also issue remands when the RO agrees to pay benefits
without further litigation. In these instances, claims are sent back to
OWCP for the implementation of an agreement to pay benefits.
[34] BRB is not empowered to engage in an initial consideration of
evidence or unrestricted review of a case brought before it. Pursuant
to section 21(b)(3), 33 U.S.C. § 921(b)(3) of the Longshore and Harbor
Workers' Compensation Act, as incorporated into the Black Lung Act by
section 422, 30 U.S.C. § 932. BRB is authorized to review the findings
of fact and conclusions of law of administrative law judges in cases on
appeal before it, on which the decision or order appealed from was
based, and such findings may be set aside only if they are not, in the
judgment of the BRB, supported by substantial evidence in the record
considered as a whole or in accordance with law. 20 C.F.R. § 802.301
(2009). For example, in one case, the U.S. Court of Appeals for the
Sixth Circuit held that in requiring the administrative law judge to re-
evaluate the evidence, the BRB had evaluated each fact and thus
exceeded the narrow scope of review, which it is accorded under 20
C.F.R. § 802.301 (2009). Campbell v. Consolidation Coal Co., 811 F.2d
302 (6th Cir. 1987).
[35] ICF International, Evaluation of the Efficiency and Effectiveness
of the Black Lung Program (June 13, 2007).
[36] OWCP officials noted that the reasons for remands to OWCP are well
understood and primarily occur because claims require further d;
therefore, no formal study was necessary for OWCP to focus on reducing
this source of delays.
[37] DOL officials said that it is not their practice to seek the
repayment of interim benefits from the surviving family members of
deceased miners ultimately denied benefits.
[38] 62 Fed. Reg. 3338 (Jan. 22, 1997).
[39] According to DOL, in fiscal year 2008, 43 percent of funds
appropriated for administrative activities from the Black Lung
Disability Trust Fund were provided to the Office of the Solicitor,
BRB, and OALJ.
[40] 65 Fed. Reg. 79920 (Dec. 20, 2000), effective January 19, 2001.
According to officials, criticism centered on the following: (1) mine
operators' costs to develop a defense for every claim were expensive
and unnecessary, (2) limited opportunities to appeal may have violated
some due process rights, and (3) unrepresented claimants may have been
disadvantaged. Some officials at DOL also expressed concern that claims
adjusters at OWCP may not be appropriately qualified to make decisions
about the submission of evidence that would have been required under
the proposal.
[41] To conduct hearings, administrative law judges attempt to travel
to locations convenient for claimants, typically within 75 miles of a
claimant's residence.
[42] OALJ also said that continuances are also commonly granted to
develop additional medical evidence.
[43] OALJ awarded claimant benefits in 23 percent of its decisions in
fiscal year 2008 and remanded 13 percent. The remaining 11 percent of
OALJ decisions were either withdrawn by parties, dismissed, or involved
decisions that were not related to the awarding of claimant benefits.
[44] The BRB does not deny or award claims but affirms, reverses,
modifies, or vacates the OALJ decision to grant or deny benefits to
claimants.
[45] We estimated that other claims were denied because claimants were
not able to prove total disability, were not able to prove coal mine
employment, or did not follow procedures for preparing claims or
submitting evidence.
[46] By statute, there is an irrebuttable presumption of total
disability due to pneumoconiosis if X-rays of a miner's lungs show a
spot or lesion that is greater than 1 centimeter in diameter. 30 U.S.C.
§ 921.
[47] See 20 C.F.R. §§ 718.204(c) and 718.201 (2009).
[48] 30 U.S.C. § 932 (a).
[49] 33 U.S.C. § 933 (g) (1).
[50] A reasonable attorney fee, subject to department approval, may be
collected from the RO that is ultimately found liable for the payment
of benefits or, in a case in which there is no RO who is liable for the
payment of benefits, from the Black Lung Disability Trust Fund. See 30
U.S.C. § 932(a). (This section of the Black Lung Benefits Act
incorporates 33 U.S.C. § 928(a), the attorney fee provision of the
Longshore and Harbor Workers' Compensation Act.)
[51] DOL regulations state that a representative can be an attorney or
a nonattorney. 20 C.F.R. § 725.363 (2009).
[52] The regulation states that the fees payable include reasonable
fees for necessary services performed prior to the creation of the
adversarial relationship. 20 C.F.R. § 725.367 (2009).
[53] DOL regulations state that OALJ does not have authority to appoint
counsel or refer claimants to attorneys. 29 C.F.R. § 18.35 (2009).
[54] According to BRB, when an appeal is filed by a claimant without an
attorney to BRB (a pro se appeal), the Board provides a complete
substantial evidence review on all issues of fact and law pertinent to
the administrative law judge's decision. In many cases, this results in
an administrative law judge's denial of benefits being remanded for
reconsideration of whether the claimant is entitled to benefits.
[55] DOL regulations permit interest to be assessed for attorney's
fees, computed from the date on which the attorney fee was awarded
through the date the RO paid the attorney's fee. 20 C.F.R. § 725.608(c)
(2009).
[56] If benefits are awarded, attorney's fees are paid by the mine
company or the Black Lung Disability Trust Fund. 20 C.F.R. §725.366
(2009).
[57] 20 C.F.R. §725.365 (2009).
[58] We did not independently assess the reliability of these cost
estimates.
[59] HRSA officials could not provide us with information about grantee
expenditures on lay representation because the program does not collect
this information.
[60] To ensure that claimants have access to physicians who are well
qualified to conduct black lung diagnostic testing and complete
pulmonary evaluations, DOL issued regulations in 2001 requiring OWCP to
create and maintain an official, publicly available list of department-
approved medical providers. See 20 C.F.R. § 725.406 (2009).
[61] For DOL's medical evaluation form, see CM-988: Medical History and
Examination for Coal Mine Workers' Pneumoconiosis (OMB No.: 1215-0090).
[62] For DOL's supplemental guidelines, see CM-988A: Instructions for
Black Lung Physical Examination.
[63] Blood gas tests measure the ability of the lungs to oxygenate
blood and are an indication of the level of a claimant's impairment.
[64] 20 C.F.R. § 718.105 (2009).
[65] Given the challenges noted above, we did not attempt to determine
how long claims that were denied remained in the process, even though
they may represent a significant proportion of claims. We also did not
focus on claims where a miner was awarded benefits from the Black Lung
Disability Trust Fund because, according to officials, many of these
claims are awarded at OWCP, and it is unlikely that these awards would
be appealed.
[66] 45 Fed. Reg. 13678 (Feb. 29, 1980) and 65 Fed. Reg. 79920 (Dec.
20, 2000), respectively.
[67] Claims resolved in 1 year or less included 138 claims that
recorded "zero" as the number of days in which a RO agreed to pay
benefits. DOL officials said that this is an artifact of their claims
process. Specifically, in some cases, a mine company agrees to pay
shortly before or after OWCP's initial decision, and for administrative
reasons, a zero is recorded. However, for 24 of these claims, the
number of days in which a RO agreed to pay benefits appeared unreliable
(e.g., when an agreement to pay was dated several years prior to the
claim application date). These claims were not omitted from our
analysis.
[68] Based on 2009 data derived from NIOSH's National Occupational
Respiratory Mortality System.
[69] Based on 2009 data derived from OWCP.
[70] Based on the opinions of national experts and federal agency
officials.
[71] According to OALJ's Case 'Tracking System, approximately 80
percent of claimants are represented at the OALJ level. As noted in the
report, Administrative Law Judges actively encourage claimants to
obtain representation. Although Administrative Law Judges are
prohibited by regulation from appointing counsel or referring a
claimant to an attorney, OALJ's public website contains a list of black
lung clinics, OWCP offices, and a law school clinical program that
claimants may contact for assistance.
[72] See Draft Report at p. 12.
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