Background

According to NIOSH, coal workers’ pneumoconiosis (CWP), also known as  black lung disease, has been a contributor or underlying cause of death  for more than 73,800 United States workers since 1968 (see fig.1).  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. 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. 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 conditions in our nation’s coal mines; however, with  coal currently mined in 27 states and coal mines employing an average of  117,082 workers, 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.
The Black Lung Benefits Program provides medical and income assistance  to coal mine workers who suffer disability or death due to black lung  disease. 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) the miner has pneumoconiosis; (2) the  lung disease arose from coal mine employment; (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 in his  usual coal mine work); and (4) the miner’s pneumoconiosis is a  substantially contributing cause of his disability.
If a claimant 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. 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.
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). Once OWCP issues a decision, either the  claimant, responsible mine operator (RO), or Black Lung Disability Trust  Fund officials can request a hearing 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.
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. 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. If a  miner fails to undergo a required medical examination without good  cause, the claim may be denied. In addition, a miner may submit a  medical report (obtained at the miner’s expense) from a personal doctor  or a physician.
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 (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. 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.

		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. Yet, this  approach has some limitations as noted above.
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 (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. 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 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. 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.
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, and a significant number of claims are  appealed after a decision is issued by OWCP either awarding or denying  benefits. 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. 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. 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. 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. 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.

		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 their claim by filing appeals; 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.
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. 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. The proposal received much criticism during the public  comment period and was not adopted in the final rule. 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. 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. 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. 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. 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.

		Few Claimants Are Able to Prove They Meet All of the Program’s Evidentiary Requirements

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. Some claimants have  difficulty proving that their lung disease is pneumoconiosis. 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, 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.
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.
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.
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,  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. 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. 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. 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. 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. 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.
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. 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. In Black Lung Benefits Act cases, a claimant may not be  charged a fee by an attorney unless black lung benefits are awarded.  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. 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 clinics are supported by HRSA grants;  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. 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. 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.
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. 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.
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.  Blood gas tests are required by regulation and conducted with the miner at  rest and, if medically indicated, during exercise. 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 total disability; 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  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.

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 the Department of Labor (DOL); 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 processes or  computer systems; 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. 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. 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. 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 reasons  why appeals are denied; 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, (2) a large volume of federal black lung  claims, and (3) estimates of black lung-related resources and services.  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.

Appendix II: Comments from the Department of Labor

Appendix III: GAO Contact and Staff Acknowledgments

	GAO Contact

	Acknowledgments

Patrick Dibattista (Assistant Director) and Michelle Bracy (analyst-in- charge) managed all aspects of the assignment. Edward Bodine,  Christopher Lyons, and Brenda Muñoz 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  methodology and statistical analysis; Doreen Feldman and Roger Thomas  provided legal support; James Bennett and Susan Bernstein assisted in the  message and report development; and Jeff Miller assisted with quality  assurance.

Summary:
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 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.

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 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.