U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

24–452 PDF 2017

S. HRG. 113–860 

COAL MINERS’ STRUGGLE FOR JUSTICE: HOW 

UNETHICAL LEGAL AND MEDICAL PRACTICES 

STACK THE DECK AGAINST BLACK LUNG 

CLAIMANTS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE 

SAFETY 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

ON

EXAMINING COAL MINERS, FOCUSING ON BLACK LUNG CLAIMANTS 

JULY 22, 2014 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

HELPN-003 with DISTILLER

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

TOM HARKIN, Iowa, Chairman 

BARBARA A. MIKULSKI, Maryland 

PATTY MURRAY, Washington 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

KAY R. HAGAN, North Carolina 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

CHRISTOPHER S. MURPHY, Connecticut 

ELIZABETH WARREN, Massachusetts 

LAMAR ALEXANDER, Tennessee 

MICHAEL B. ENZI, Wyoming 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

LISA MURKOWSKI, Alaska 

MARK KIRK, Illinois 

TIM SCOTT, South Carolina 

DEREK MILLER, Staff Director 

LAUREN MCFERRAN, Deputy Staff Director and Chief Counsel 

DAVID P. CLEARY, Republican Staff Director 

SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY

ROBERT P. CASEY, JR., Pennsylvania, Chairman 

PATTY MURRAY, Washington 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

TOM HARKIN, Iowa (ex officio) 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

ORRIN G. HATCH, Utah 

TIM SCOTT, South Carolina 

LAMAR ALEXANDER, Tennessee (ex officio) 

LARRY SMAR, Staff Director 

TOMMY NYGUYEN, Minority Staff Director 

(II) 

HELPN-003 with DISTILLER

C O N T E N T S 

STATEMENTS 

TUESDAY, JULY 22, 2014 

Page 

COMMITTEE MEMBERS

Casey, Hon. Robert P., Jr., Chairman, Subcommittee on Employment and 

Workplace Safety, opening statement ................................................................ 1 

Prepared statement .......................................................................................... 3 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, opening 

statement .............................................................................................................. 6 

Harkin, Hon. Tom, Chairman, Committee on Health, Education, Labor, and 

Pensions, opening statement ............................................................................... 21 

Prepared statement .......................................................................................... 23 

WITNESSES—PANEL I 

Lu, Christopher P., Deputy Secretary, Department of Labor, Washington, 

DC; accompanied by Patricia Smith, Solicitor, Department of Labor, Washington, DC ............................................................................................................. 7 

Prepared statement .......................................................................................... 8 

Howard, John, M.D., Director, National Institute for Occupational Safety 

and Health, Washington, DC .............................................................................. 14 

Prepared statement .......................................................................................... 15 

WITNESSES—PANEL II 

Cline, John, Attorney, Piney View, WV ................................................................. 27 

Prepared statement .......................................................................................... 28 

Parker, John E. (Jack), M.D., Pulmonary Section Chief, West Virginia University Department of Medicine, Morgantown, WV ............................................... 32 

Prepared statement .......................................................................................... 33 

Bailey, Robert, Jr., Former Coal Mine Worker, Princeton, WV ........................... 38 

Prepared statement .......................................................................................... 39 

Briscoe, Robert, WCP, Principal and Senior Consultant, Milliman, New York, 

NY ......................................................................................................................... 41 

Prepared statement .......................................................................................... 42 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Senator Rockefeller .......................................................................................... 51 

Senator Manchin .............................................................................................. 54 

Letters: 

President Barack Obama from the Congress of the United States, 

Washington, DC ..................................................................................... 55 

George E. Mehalchick, Esq., Lenahan and Dempsey, Scranton, PA ..... 57 

Paul E. Frampton, Bowles Rice LLP, Attorneys at Law, Charleston, 

WV .......................................................................................................... 58 

Arthur Traynor, Associate General Counsel, United Mine Workers 

of America, Triangle, VA (UMWA) ....................................................... 59 

(III) 

HELPN-003 with DISTILLER

HELPN-003 with DISTILLER

(1) 

COAL MINERS’ STRUGGLE FOR JUSTICE: HOW 

UNETHICAL LEGAL AND MEDICAL PRACTICES STACK THE DECK AGAINST BLACK 

LUNG CLAIMANTS 

TUESDAY, JULY 22, 2014 

U.S. SENATE, SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY, COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, Washington, DC. 

The subcommittee met, pursuant to notice, at 9:45 a.m., in room 

SD–430, Dirksen Senate Office Building, Hon. Robert P. Casey, Jr., 

chairman of the subcommittee, presiding. 

Present: Senators Casey and Isakson. 

OPENING STATEMENT OF SENATOR CASEY

Senator CASEY. Good morning, everyone. The subcommittee hearing will come to order. I want to thank the witnesses who are with 

us. I want to thank our ranking member, Senator Isakson, for his 

presence here today and his work to help schedule this hearing and 

to ask questions of our witnesses. 

Today the Subcommittee on Employment and Workplace Safety 

convenes to focus on an issue that doesn’t get a lot of attention. In 

particular, we’re here today to talk about and to focus on the alleged actions of certain coal industry doctors and the alleged actions of certain lawyers as well as others in attempting to deny 

benefits to miners who are suffering from the debilitating effects of 

black lung disease. Black lung disease is caused through the inhalation of coal mine dust, and it leads to severe breathing complications and is found mostly in central Appalachia, in particular, the 

States of Pennsylvania, West Virginia, Kentucky, and Virginia. 

According to the Department of Labor, black lung disease contributed to the deaths of over 75,000 miners from 1968 to 2007. 

That averages to over 1,900 miner deaths per year over a 39-year 

period. That’s an extraordinary number. I’m not sure how widely 

reported that number is. While overall rates have dropped since 

1968, research conducted by the National Institute for Occupational Safety and Health shows that there has been a spike since 

the early 1990s, particularly in the most severe, fast progressing 

type of black lung disease, which has increasingly affected younger 

miners. 

Last October, the Center for Public Integrity and ABC News released findings from a year-long investigation examining how coal 

industry doctors and lawyers helped defeat and delay benefit 

HELPN-003 with DISTILLER

2 

claims from the growing number of miners suffering from black 

lung disease and their grieving survivors, who have been consistently denied or delayed justice from a system that seems increasingly stacked against them. The investigation specifically highlighted the alleged medical practices of Dr. Paul Wheeler, who 

failed to find a single case of complicated black lung in over 1,500 

cases he reviewed since 2000. 

Without objection, I would like to enter the CPI, the Center for 

Public Integrity, report entitled ‘‘Breathless and Burdened,’’ into 

the record. 

[Editor’s Note: Due to the high cost of printing, previously published materials are not reprinted in the hearing record. The above 

referenced document may be found at https://cloudfront-files1.publicintegrity.org/documents/pdfs/CPI+Breathless+and+ 

Burdened.pdf.] 

Following this report, as well as inquiries from my office as well 

as other Members of Congress, the Department of Labor has taken 

steps to address the issues identified in the black lung benefit process. The Department announced that it will issue a new rule to address disclosures that lawyers representing coal companies have 

withheld medical evidence from miners in black lung benefit cases. 

The Department also issued a field memo instructing staff to no 

longer credit evidence presented by Dr. Wheeler. And, finally, the 

Department has sent letters to black lung claimants whose cases 

involved medical evidence from Dr. Wheeler and whose benefits 

were subsequently denied, explaining the process for reopening 

their cases. 

I am pleased to work with the Department of Labor in its efforts 

to begin leveling the playing field for black lung claimants. But 

there’s still more that needs to be done, particularly in relation to 

the growing backlog of cases at the Department’s Office of Administrative Law Judges. 

I am deeply concerned that miners who have been afflicted have 

to wait years for their cases to be decided. According to data from 

the Department of Labor, black lung claimants are waiting an average of 429 days just for their cases to be assigned, just to be assigned to an administrative law judge and an additional 90 to 120 

days after assignment before their cases are heard in court. That’s 

over 520 days for claimants, 520 days. Many claimants too disabled 

to work are just starting to make the case that they deserve benefits. 

One of my constituents from Glen Lyon, PA, not far from my 

hometown of Scranton—where we have a coal mining tradition and 

history, after finding out about the hearing—contacted my office to 

describe her five-plus year struggle as a widow fighting for black 

lung survivor benefits following her husband’s death in 2008. I’m 

entering into the record a letter detailing her long and tortured 

pursuit of justice. 

[The information referred to may be found in additional material.] 

Justice delayed, as we often have said, is justice denied, and in 

this case, for coal miners suffering from the debilitating effects of 

black lung disease. Our Nation’s hardworking miners and their 

families deserve much, much, better than that. 

HELPN-003 with DISTILLER

3 

I called this hearing today so we can do the following three 

things. No. 1 is highlighting the struggles that black lung claimants face in seeking and finding justice, basic justice, particularly 

how legal and medical practices place an undue and often insurmountable burden on miners in the black lung claims process. No. 

2, we’re going to review the actions taken by the Administration to 

help level the playing field for claimants and determine what additional steps need to be taken. And third is to discuss the growing 

backlog of cases at the Department and explore actions that can be 

taken by the Administration and Congress to begin reducing and 

ultimately eliminating the lengthy wait times that miners face in 

seeking the benefits that they deserve and that they desperately 

need. 

I’m also entering into the record statements from Senators 

Rockefeller and Harkin, who have been great champions for coal 

mine workers during their nearly 60 years combined service in the 

U.S. Senate. 

[The prepared statements of Senator Harkin and Senator Rockefeller can be found in additional material.] 

We will miss their leadership in addressing the important issues 

facing hardworking miners when both of these Senators retire at 

the end of this year. But they aren’t finished yet. They’re still 

working on these issues, and I’m currently working with Senators 

Rockefeller, Harkin, Manchin, as well as Representative George 

Miller, to update Senator Rockefeller’s Black Lung Health Improvements Act of 2013. We’re exploring ways to tackle the issues highlighted in the Center for Public Integrity and ABC News investigation, and we’ll incorporate any additional information or ideas 

brought forward in this hearing. 

I look forward to the testimony and ensuing discussion from our 

two witness panels. With that, I’ll turn it over to Senator Isakson 

for his opening remarks. 

[The prepared statement of Senator Casey follows:] 

PREPARED STATEMENT OF SENATOR CASEY

This hearing of the Subcommittee on Employment and Workplace Safety will come to order. 

We are here today to talk about the real and disheartening effects caused by the actions of certain coal industry doctors and lawyers in attempting to deny benefits to miners who are suffering 

from the debilitating effects of black lung disease. 

Black lung disease is caused through the inhalation of coal mine 

dust. The accumulation of dust particles in the lungs ultimately 

leads to severe breathing complications, such as shortness of breath 

and moderate to severe airway obstruction, decreasing quality of 

life. The disease is diagnosed through chest x-rays and breathing 

tests and is found mostly in central Appalachia, particularly in 

Pennsylvania, West Virginia, Kentucky, and Virginia. 

According to the Department of Labor, which administers the 

black lung benefits program, black lung disease contributed to the 

deaths of over 75,000 miners from 1968 to 2007—that averages to 

over 1,900 miner deaths per year over the 39 year period. And 

while overall rates have dropped since 1968, research conducted by 

the National Institute for Occupational Safety and Health shows 

HELPN-003 with DISTILLER

4 

that there has been a spike since the early 1990s, particularly in 

the more severe, fast-progressing type of the disease, which has increasingly affected young miners. 

Last October, the Center for Public Integrity and ABC News released findings from a yearlong investigation examining how coal 

industry doctors and lawyers have helped defeat and delay benefits 

claims from the growing number of miners suffering from black 

lung disease and their grieving survivors, who have been consistently denied or delayed justice from a system that seems increasingly stacked against them. 

This CPI and ABC News investigation found that lawyers at 

Jackson Kelly PLLC, a firm that advocates on behalf of coal companies, often withheld medical evidence in black lung benefits cases 

if it supported a miner’s claim. According to the Department of 

Labor, less than one-third of miners have a lawyer when first filing 

their claims and this practice of withholding medical evidence further prevents a miner from having a fair shot at presenting his or 

her case. Withholding evidence also prevents a miner from knowing 

exactly when black lung disease was first diagnosed, which is important for determining if and when back pay is warranted. 

The investigation also highlighted the unethical medical practices of Dr. Paul Wheeler, of Johns Hopkins, who failed to find a 

single case of complicated black lung in the over 1,500 cases he reviewed since 2000, even though x-ray readings from other B Reader 

certified doctors (including one of the witnesses at this hearing, Dr. 

Parker), biopsies, or autopsies have repeatedly proven him wrong. 

Dr. Wheeler’s questionable methods led to the denial of benefits to 

many deserving claimants, who were then forced to suffer through 

this terrible disease without the financial support that they and 

their families so desperately needed. 

Johns Hopkins, to its credit, quickly shut down its black lung 

clinic when news of Dr. Wheeler’s unethical practices surfaced, 

pending an investigation into the matter. 

Following the October 2013 CPI and ABC News report, as well 

as inquiries from myself and other Members of Congress, the Department of Labor has taken steps to address the issues identified 

in the black lung benefits process. 

The Department announced that it will issue a new rule to address disclosures that lawyers representing coal companies have 

withheld medical evidence from miners in black lung benefits 

cases. The Department also issued a field memo instructing staff 

to no longer credit evidence presented by Dr. Wheeler. And finally, 

the Department has sent letters to black lung claimants, whose 

cases involved medical evidence from Dr. Wheeler and whose benefits were subsequently denied, explaining the process for reopening 

their cases. 

I am pleased with the Department of Labor’s efforts to begin leveling the playing field for black lung claimants, but there is still 

more that needs to be done—particularly in relation to the growing 

backlog of cases at the Department’s Office of Administrative Law 

Judges. 

I am deeply concerned that sick miners have to wait years for 

their cases to be decided. According to data from the Department 

of Labor, black lung claimants are waiting an average of 429 days 

HELPN-003 with DISTILLER

5 

just for their cases to be assigned to an administrative law judge 

and an additional 90–120 days after assignment before their cases 

are heard in court. That’s over 520 days for claimants, many too 

disabled to work, just to start making the case that they deserve 

benefits. 

I, along with other Members, sent a letter to the President in 

February asking him to make the reduction of backlogged cases a 

priority in his fiscal year 2015 budget request. He responded with 

a $2.9 million increase in funding, which is a step in the right direction, but does not go far enough—even with this level of funding, the backlog would continue to grow, from just over 11,000 

cases in fiscal year 2013 to almost 15,000 cases by the end of fiscal 

year 2015, based on data from the Department of Labor. Based on 

these figures, my staff estimates that it will take about $10 million 

more than what the President requested to not only stop the backlog from growing, but to actually begin reducing the number of 

backlogged cases. 

I encourage Members on the Appropriations Committee to work 

with me to look into this issue and to come up with a way to find, 

what amounts to a very small amount of funds in relation to the 

overall budget, but an amount that could have an enormously positive impact on this overwhelmed program and for the sick miners 

who rely on it. 

One of my constituents from Glen Lyon, PA, not far from my 

hometown of Scranton, after finding out about this hearing, contacted my office to describe her 5-plus year struggle as a widow 

fighting for black lung survivor benefits following her husband’s 

death in 2008. I am entering a letter detailing her long and tortured pursuit of justice into the record. 

Justice delayed is often justice denied for coal miners suffering 

the debilitating effects of Black Lung disease. Our Nation’s hardworking miners and their families deserve much better than that. 

I called this hearing today so that we can do the following three 

things: 

• Highlight the struggles that black lung claimants face in seeking and finding justice—particularly how legal and medical practices place an undue and often insurmountable burden on miners 

in the black lung claims process. • Review the actions taken by the Administration to help level 

the playing field for black lung claimants and determine what additional steps need to be taken. 

• Discuss the growing backlog of cases at the Department of Labor’s Office of Administrative Law Judges and explore actions that 

can be taken by the Administration and Congress to begin reducing 

and, ultimately, eliminate the lengthy wait times that miners face 

in seeking the benefits that they deserve and so desperately need. 

I am also entering into the record statements from Senators 

Rockefeller and Harkin, who have been great champions for coal 

mine workers during their nearly 60 combined years in the U.S. 

Senate. We will all miss their leadership on addressing the important issues facing hard working miners when they retire at the end 

of the year. 

But they aren’t finished just yet—I am currently working with 

Senators Rockefeller, Harkin, Manchin, and Representative George 

HELPN-003 with DISTILLER

6 

Miller to update Senator Rockefeller’s Black Lung Health Improvements Act of 2013. We are exploring ways to tackle the issues highlighted in the CPI and ABC News investigation and will also incorporate any additional information or ideas brought forward in this 

hearing. 

I look forward to the testimony and ensuing discussion from our 

two witness panels. With that I’ll turn it over to Senator Isakson 

for his opening remarks. 

OPENING STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Thank you, Mr. Chairman, for calling this 

hearing on a critical subject. The Black Lung Compensation Program is critical to those who work in the mining industry for workers’ compensation, and it’s absolutely our responsibility to see to it 

that the information is accurate and that the program has great integrity. 

Understanding that we have three votes at 10:45 and understanding the stars of this show are our witnesses rather than me, 

I’ll ask unanimous consent that my entire statement be entered 

into the record and turn it over to the chairman to introduce our 

guests. 

[The prepared statement of Senator Isakson was not available at 

time of print.] 

Senator CASEY. Senator Isakson, thank you very much. 

We are joined by Senator Harkin, and he missed only by seconds 

my commendation of his service in the Senate, especially as it relates to miners. We’re grateful that he’s here with us. 

First, I’ll introduce our first panel, and then we’ll get right to the 

testimony. I would urge the witnesses to keep—because of what 

Senator Isakson referred to, our votes—keep your statements to 5 

minutes, and, of course, your full statements will be entered into 

the record. 

First, Chris Lu was sworn in as the Deputy Secretary of the U.S. 

Department of Labor on April 4th of this year, where he serves as 

the chief operating officer for a 17,000 employee organization that 

works to create greater opportunities for all Americans. Previously, 

he held many governmental positions, including White House Cabinet Secretary and Assistant to the President, Legislative Director 

and Acting Chief of Staff for then Senator Obama. Prior to working 

in the Senate and the White House, Mr. Lu worked for 8 years 

with Representative Henry Waxman as the Deputy Chief Counsel 

of the House Oversight and Government Reform Committee. 

Mr. Lu, thank you for being here. 

Patricia Smith was confirmed by the Senate as the Solicitor of 

Labor on February 4, 2010. Prior to becoming Solicitor of Labor, 

Patricia Smith was the New York State Commissioner of Labor 

and the chief of the Labor Bureau for the New York State Attorney 

General. She also argued and won two cases before the Supreme 

Court and has an extensive history of representing employees in 

various legal service organizations. 

Ms. Smith, thank you very much for being here. 

Third and finally for this panel, Dr. John Howard serves as the 

Director of the National Institute for Occupational Safety and 

Health in the U.S. Department of Health and Human Services. Dr. 

HELPN-003 with DISTILLER

7 

Howard was first appointed by President George W. Bush and was 

reappointed to serve in this capacity under President Obama. 

Prior to his appointment as Director of NIOSH, the acronym 

which we’ll hear a lot about today, Dr. Howard served as the chief 

of the Division of Occupational Safety and Health in the California 

Department of Industrial Relations. Dr. Howard is board certified 

in internal medicine and has written numerous articles on occupational health law and policy. 

Doctor, thank you for being with us today. 

Let me start with Mr. Lu. Thank you for your presence here, we 

look forward to your testimony. 

STATEMENT OF CHRISTOPHER P. LU, DEPUTY SECRETARY, 

DEPARTMENT OF LABOR, WASHINGTON, DC; ACCOMPANIED 

BY PATRICIA SMITH, SOLICITOR, DEPARTMENT OF LABOR, 

WASHINGTON, DC 

Mr. LU. Thank you, Chairman Casey, Ranking Member Isakson, 

Senator Harkin. Thank you for inviting me and Solicitor Patricia 

Smith to testify about the Department of Labor’s administration of 

the Black Lung Benefits Act. 

Mr. Chairman, when I first appeared before this committee in 

February, I assured you and Senator Harkin that if confirmed I 

would be committed to ensuring fairness for America’s coal miners 

and their families. Let me restate that commitment to you today. 

The Department’s Office of Workers’ Compensation Program, 

OWCP, administers the Black Lung Benefits Program. When a 

claim is filed, OWCP provides a complete pulmonary evaluation at 

the Department’s expense. OWCP considers the evidence from the 

evaluation along with other evidence submitted by the parties and 

then makes a claim determination. Any claimant or employer dissatisfied with OWCP’s decision may request a hearing before the 

Department’s Office of Administrative Law Judges and from there 

may appeal to the Benefit Review Board and then to the appropriate Federal circuit court. 

Senator Casey, as you indicated, last fall the Center for Public 

Integrity and ABC News published a series of reports highlighting 

the difficulties faced by claimants seeking black lung benefits. The 

reports described litigation tactics of coal company attorneys to selectively disclose medical evidence. In particular, the reports focused on a case involving Gary Fox in which his employer’s attorneys concealed evidence that Mr. Fox had advanced black lung disease. Due to this concealment, Mr. Fox was initially denied black 

lung benefits. 

CPI and ABC News also looked at the routine use of certain physicians by coal companies. As you indicated, the reports focused on 

the Johns Hopkins Medical Center B Reader program led by Dr. 

Paul Wheeler. Those reports found that Dr. Wheeler failed to diagnose complicated black lung disease in over 1,500 cases while other 

experts reading the same x-rays found the disease in 390 of those 

cases. 

In response to these reports, on February 24th of this year, the 

Department of Labor launched a pilot project to strengthen the 

complete pulmonary evaluation given to miners when they initially 

file a claim, which will increase the accuracy of decisions. The DeHELPN-003 with DISTILLER

8 

partment also announced a new black lung rulemaking initiative 

that will consider whether all parties must disclose medical evidence related to a claim. Such a requirement will help ensure that 

coal miners have full access to information about their health. 

With regard to Dr. Wheeler, OWCP issued a bulletin instructing 

its district directors not to credit evidence submitted by Dr. Wheeler’s x-ray readings in the absence of evidence rehabilitating his 

credibility. OWCP has searched its records to identify denied 

claims that contained x-ray interpretations made by Dr. Wheeler 

and has attempted to contact almost 1,100 affected claimants about 

their right to request a reopening of their claim or their right to 

file a new claim. 

Finally, the Department has launched a new training initiative 

in connection with NIOSH to further improve the quality of its decisions. As the subcommittee has also recognized, there is a backlog 

of black lung claims awaiting hearing and decision by the Office of 

Administrative Law Judges. 

To begin to address this situation, the president’s fiscal year 

2015 budget for the ALJs proposes a programmatic increase of 

$2.72 million. In total, OALJ’s budget reflects an 11.5 percent increase over the fiscal year 2014 budget and is the largest increase 

the Department has sought in 10 years. 

In fiscal year 2015, the Department plans to hire two new ALJs 

for the Pittsburgh office primarily to adjudicate black lung cases. 

The Department will also bring back a retired ALJ in Pittsburgh 

to focus predominantly on black lung cases. In addition, we are instituting a number of efficiencies that we believe will increase the 

productivity of ALJs and speed up the disposition of black lung 

cases. 

Nevertheless, the Department’s outreach efforts to miners whose 

claims contained Dr. Wheeler’s interpretations are likely to result 

in a significant number of new claims. And even without this recent outreach effort, the number of claims filed in 2014 is projected 

to increase by 10.6 percent. 

In conclusion, let me assure you that the Department of Labor 

is committed to improving the effectiveness of these programs, and 

we look forward to working with the subcommittee on this important effort. 

Thank you. 

[The prepared statement of Mr. Lu and Ms. Smith follows:] 

PREPARED STATEMENT OF CHRISTOPHER P. LU

Chairman Casey, Ranking Member Isakson, and distinguished members of the 

subcommittee, thank you for inviting me to testify about the Department’s administration of the Black Lung Benefits Act. The Department is committed to the Nation’s coal miners and their families, and to ensuring fairness in the claims process. 

You have asked us to address the steps the Department has taken in response 

to the October 2013 Center for Public Integrity (CPI) and ABC News reports about 

difficulties miners and their survivors have encountered in pursuing black lung benefits. You have also asked us to address the backlog of black lung cases pending 

before the Office of Administrative Law Judges. We appreciate your ongoing interest 

in the Black Lung program and welcome the opportunity to discuss the program 

with you, Mr. Chairman, and the subcommittee today. We look forward to your continuing leadership on these issues. 

HELPN-003 with DISTILLER

9 

1Pub. L. No. 111–148, § 1556(c), 124 Stat. 260 (2010). 2 30 U.S.C. § 921(c)(3). 3 30 U.S.C. § 921(c)(4) (2006 & Supp. V 2011). 

INTRODUCTION

Recognizing that coal miners were sacrificing both their health and economic futures to produce the coal necessary to meet the Nation’s energy needs, and that 

State workers’ compensation programs were inadequate for them, Congress enacted 

the Black Lung Benefits Act in 1969. Since then, the Act has provided compensation 

and medical-treatment benefits to thousands of disabled coal miners and compensation to their surviving family members. Currently, the Act provides benefits to coal 

miners who are totally disabled by black lung disease and to the survivors of miners 

who died due to the disease. The Byrd Amendments, enacted in 2010, also restored 

automatic entitlement to survivors of miners who were found entitled to benefits 

based on their own lifetime claims.1

Generally, a miner must establish that he or she has a lung disease arising from 

coal mine employment, a totally disabling respiratory impairment, and that the lung 

disease contributed to the impairment. A survivor who cannot benefit from the Byrd 

automatic entitlement provisions must establish that the miner had a lung disease 

arising from coal mine employment, and that the lung disease hastened the miner’s 

death. Any claimant, miner, or survivor, must prove his or her case by a preponderance of the evidence. 

In making his case, a claimant may be able to take advantage of two important 

statutory presumptions. First, if the claimant proves the miner has or had complicated black lung disease—an advanced form of the disease also known as progressive massive fibrosis—the claimant can invoke a presumption of entitlement that 

the liable party is not permitted to rebut.2 Second, if the miner engaged in underground coal mine employment, or substantially similar above-ground coal mine employment, for at least 15 years and the claimant proves that the miner has or had 

a totally disabling respiratory impairment, the claimant can invoke a presumption 

that the miner has or had black lung disease and that the miner’s disability or 

death was due to the disease. The liable party may rebut this presumption only by 

showing the absence of black lung disease and that no part of the miner’s disability 

or death was related to coal mine employment.3

The Department’s Office of Workers’ Compensation Programs (OWCP) administers the program. OWCP’s District Directors, whose offices are located around the 

country, develop claims and conduct initial adjudications. OWCP offers all miners 

who file claims a complete pulmonary evaluation at the Department’s expense. 

OWCP then considers this evidence, along with that submitted by the private parties, in adjudicating the claim. Any claimant or coal company dissatisfied with the 

District Director’s decision may request a de novo hearing before the Department’s 

Office of Administrative Law Judges (OALJ). Before the administrative law judge, 

parties may offer additional evidence—within the limitations established by the Department’s regulations—on contested issues. The judge will also conduct an oral 

hearing unless waived by the parties. After hearing the case and receiving evidence, 

the judge issues a decision either awarding or denying benefits. An aggrieved party 

may seek appellate review by the Department’s Benefits Review Board, and thereafter by the United States Court of Appeals for the circuit in which the miner’s coal 

mine employment occurred. 

The Act originally divided responsibility for the program between the Social Security Administration, which administered early claims that were payable directly by 

the Federal Government, and the Department of Labor, which administered all 

claims filed after 1973. Claims administered by the Department are payable by coal 

mine companies (or their insurance carriers) that employed the miner; if there is 

no liable coal mine company available, the Black Lung Disability Trust Fund pays 

benefits. 

THE CPI/ABC NEWS REPORTS

Last fall, CPI and ABC News published a series of reports highlighting hurdles 

claimants face in seeking black lung benefits. They focused primarily on two areas. 

First, the reports described litigation tactics used by attorneys representing coal 

companies. These tactics included selective disclosure of company-developed medical 

evidence to the adjudicator as well as to the company’s other medical experts and 

the miner. The reports used miner Gary Fox’s case, among others, to illustrate the 

problem. In that particular case, the coal company’s attorney did not share medical 

evidence that was indicative of complicated pneumoconiosis—an advanced form of 

black lung disease that when proved, establishes entitlement to benefits—with eiHELPN-003 with DISTILLER

10 

ther the coal miner or the company’s other medical experts who ultimately testified 

that Mr. Fox did not have black lung disease. The company’s evidence resulted in 

denial of Mr. Fox’s initial claim for benefits. 

Second, CPI and ABC News looked at coal companies’ routine use of certain physicians in developing medical evidence to defend against claims. The reports mainly 

focused on the Johns Hopkins Medical Center B-reader program, led by Dr. Paul 

Wheeler. (A ‘‘B-reader’’ denotes a physician who has passed the National Institute 

for Occupational Safety and Health’s examination on proficiency in using the International Labor Office (ILO) classification system to describe or ‘‘classify’’ the presence or absence of, and the severity of, radiographic opacities visible on chest Xrays, that are consistent with black lung or other dust-induced diseases.) Many employers, including coal companies, use B Readers to classify miners’ chest X-rays 

and serve as expert witnesses in contested proceedings. The CPI and ABC News reports stated that Dr. Wheeler had failed to diagnose complicated pneumoconiosis in 

over 1,500 cases, while other experts who evaluated the same cases had found complicated pneumoconiosis in 390 of them. The stories also documented that Dr. 

Wheeler was failing to properly classify chest X-rays showing obvious large opacities 

because he argued that the opacities were due to diseases other than Black Lung. 

Johns Hopkins suspended the program shortly after the CPI and ABC News stories 

were published and launched an internal review. To our knowledge, the program remains suspended today. 

THE DEPARTMENT’S RESPONSE

The Department took these reports seriously. We conducted an extensive review 

of the program to look for innovative ways to address the disparity in resources between coal companies and benefits claimants within the existing statutory and regulatory framework. The Department also looked for other changes that could be made 

to improve the fairness of the claims process and increase the accuracy of decisions 

made on claims. 

I would like to share with you some of the actions the Department has taken as 

a result of this review. 

1. Pilot Program to Develop Supplemental Medical Evidence 

On February 24, 2014, the Department launched a pilot project to strengthen the 

complete pulmonary evaluation given to miners. When a miner files a claim, the 

miner picks a doctor to conduct an examination from an approved list the Department maintains. The physician examines the miner, conducts medical tests to determine whether the miner is disabled from black lung disease, and prepares a written 

report of his or her findings. OWCP then bases its initial entitlement determination 

on the report. All claims filed by miners follow this procedure. 

But these initial medical reports do not always hold their value as a claim moves 

through the adjudication process. They are often rejected because they are outdated 

or do not consider all of the medical data added later to the record by miners and 

coal companies. The Department launched the pilot program to help alleviate these 

problems. In a small subset of claims—generally those where the miner worked 15 

or more years in the mines (and thus might be able to invoke the 15-year statutory 

presumption of entitlement) and whose initial medical report supports an award of 

benefits—the Department is developing additional medical evidence. We ask the 

doctor who conducted the initial examination to review any evidence submitted by 

the miner or the coal company and update his or her initial opinion by drafting a 

supplemental report. Depending on the particular circumstances of any given case, 

we may ask for supplemental reports during both the OWCP and administrative law 

judge adjudication phases. 

The Department chose this approach in response to the CPI and ABC News stories because it had multiple advantages. Developing additional medical evidence at 

no expense to the miner would: (1) address concerns about disparate resources; (2) 

improve decisionmaking; and (3) fit within the existing legal framework, making 

speedy implementation possible. 

The pilot project is still in its early stages. OWCP has sent out 79 requests for 

supplemental reports in cases being adjudicated by District Directors and has received 42 in response. OWCP has issued 37 decisions: 25 awards, 11 denials, and 

1 claimant withdrew his application for benefits. We have also requested supplemental opinions in several cases set for hearing before an administrative law judge, 

but these cases have not yet been decided. 

The Department hopes the pilot project gives deserving miners stronger medical 

reports that strengthen OWCP’s initial entitlement decisions and that withstand 

scrutiny when weighed against the coal companies’ contrary evidence. Stronger 

OWCP decisions may lead to fewer hearing requests in the future. While it is too 

HELPN-003 with DISTILLER

11 

soon to assess the pilot’s effectiveness, the Department will consider expanding this 

procedure to all claims filed by miners if the pilot is judged successful. 

2. New Regulatory Initiative 

In addition to the pilot project, the Department announced a new black lung rulemaking initiative on May 23, 2014, motivated in part by Gary Fox’s case and the 

CPI and ABC News reports. The Department plans to address three important 

issues in a proposed rule: whether all parties involved in a claim must disclose medical evidence they obtain in connection with a claim; the fee schedule used for payment of a miner’s medical expenses related to black lung disease; and a liable coal 

company’s responsibility to pay benefits under an effective award while seeking 

modification of the award. 

The first of these issues—the medical-evidence disclosure rule—is the most relevant here. We want to ensure that coal miners have full access to information 

about their health. We also want to render accurate decisions in adjudicating 

claims. Having access to medical evidence developed by all parties can help us accomplish both of these goals. 

The Department invited stakeholders to comment on all three rulemaking topics 

during outreach sessions held earlier this month on July 8 and 9. Both sessions 

were well attended and productive. The information the Department gathered will 

be of great assistance in drafting a proposed rule. 

3. X-ray Interpretations Made by Dr. Wheeler 

The Department also responded quickly to the allegations made in the CPI and 

ABC News reports about Dr. Paul Wheeler’s potentially incorrect X-ray readings. 

We immediately verified that OWCP was not employing Dr. Wheeler for any purpose. Shortly thereafter, OWCP’s National Office shared the news reports with their 

District Directors, instructed them to closely scrutinize any evidence offered by Dr. 

Wheeler and to consult with National Office staff on cases involving Dr. Wheeler’s 

X-ray readings. 

The CPI and ABC News reports continued to be discussed in routine bi-weekly 

management meetings involving OWCP National Office and District Director staffs. 

Not surprisingly, coal companies, for the most part, stopped submitting X-ray readings made by Dr. Wheeler. One attorney who represents coal companies asked a 

District Director to disregard any earlier requests he had made for OWCP to forward radiographs to Dr. Wheeler for re-reading. When OWCP’s National Office 

learned that one of its district offices was not following these oral instructions, the 

Department issued more detailed, written guidance. 

The Department made the judgment that the CPI and ABC News reports and 

Hopkins’ suspension of its B-reader program were sufficiently trustworthy and reliable to warrant consideration when weighing X-ray interpretations made by Dr. 

Wheeler. Accordingly, on June 2, 2014, OWCP issued a bulletin instructing its District Directors to consider this information when weighing Dr. Wheeler’s negative 

X-ray interpretations, and not to credit Dr. Wheeler’s interpretation in the absence 

of persuasive evidence either challenging the CPI and ABC News conclusions or otherwise rehabilitating Dr. Wheeler’s readings. The Solicitor’s Office is also asking administrative law judges and the Benefits Review Board to take official notice of the 

CPI and ABC News reports in appropriate cases. 

In addition to issuing this guidance, OWCP searched its records to identify denied 

claims that contained X-ray interpretations made by Dr. Wheeler. The search included claims filed from 2001 to the present. OWCP broke these claims into two 

groups: those denied within the past year that could be reopened under the Act’s 

1-year modification provision, and those denied more than 1 year ago. 

OWCP identified 83 claims that had been denied within the past year and sent 

a letter to those claimants alerting them to OWCP’s new guidance on Dr. Wheeler’s 

X-ray readings. The letter informed the claimants that they could request reopening 

of their claims, included the date by which they had to make the request, and told 

them that the request could be made either by telephoning or writing OWCP. In 

four instances, the 1-year modification deadline was quickly approaching, so OWCP 

telephoned the claimants in addition to sending the letter. To date, 13 claimants 

have sought modification in response to OWCP’s letter. 

OWCP also identified approximately 1,000 claims filed by miners between 2001 

and 2013 that contained Dr. Wheeler X-ray interpretations and had been denied for 

more than 1 year. Although modification is no longer available to these miners, a 

miner may always file a new claim because his or her condition may significantly 

deteriorate over time. Black lung disease can be latent and progressive, appearing 

after a miner’s coal mine employment ends or progressing to total disability with 

or without continued mining exposure. OWCP sent letters to these miners advising 

them of the new guidance regarding Dr. Wheeler’s X-ray interpretations and that 

HELPN-003 with DISTILLER

12 

they could file new claims. The letter told them that the Department would once 

again provide each miner with a complete pulmonary evaluation at no expense. Because the letters were sent earlier this month, we do not yet know whether any 

miners will file new claims in response. 

Unfortunately, most survivors (unlike miners) whose claims were denied more 

than 1 year ago have no avenue of relief. These survivors cannot ask for modification because the 1-year period has expired. And under the current statutory and 

regulatory scheme, such survivors cannot be found entitled to benefits based on a 

new claim. 

I can assure you that if a claimant files a timely modification request or a miner 

files a new claim, OWCP intends to follow its stated policy and not credit Dr. Wheeler’s X-ray interpretations without persuasive evidence either challenging the CPI/ 

ABC News conclusions or otherwise rehabilitating Dr. Wheeler’s readings. The Solicitor’s Office will also continue to ask administrative law judges and the Benefits 

Review Board to take official notice of the CPI/ABC News stories where appropriate. 

In addition, to address any similar issues that may arise going forward, the Department has begun exploring with the National Institute for Occupational Safety 

and Health (NIOSH) the feasibility of establishing an inter-agency quality assurance program for B-readers whose X-ray classifications are submitted and considered in black lung claims adjudications. 

4. Training Initiatives 

The Department has also launched a new training initiative to further improve 

the quality of its decisions in black lung claims. We have worked closely with 

NIOSH to develop advanced training for Department personnel who adjudicate 

claims and physicians who examine miners on behalf of the Department. The program will keep staff up-to-date on medical developments relevant to black lung 

claims. A potential curriculum for the program was reviewed and evaluated by a 

broad range of participants—including physicians and other medical providers, coal 

miners, claimant representatives and attorneys, OWCP staff, and Solicitor’s Office 

staff—at the West Virginia Black Lung Clinics Program Conference in Pipestem, 

WV, last month. The curriculum will be refined based on the feedback received at 

that session. We have engaged a contractor, Dr. Robert Cohen from the University 

of Illinois, to develop the training program with input from NIOSH. We believe the 

training will increase the quality of the medical evaluations the Department provides to miners and enhance the Department’s evaluation of the medical evidence 

when adjudicating claims. 

OWCP is committed to ongoing training, and, in addition to entering into the contract noted above, recently added a training coordinator to its National Office black 

lung staff. 

5. Communications and Outreach 

OWCP has used a variety of forums to communicate the steps that it is taking 

to improve the program. OWCP leaders have discussed the pilot project, the agency’s expanded consultations with NIOSH, and the new training program at several 

conferences attended by miners and their representatives, doctors, and other medical providers who are involved with the program. OWCP has also placed on its 

website information about the pilot project, OWCP’s guidance on Dr. Wheeler’s Xray readings, and a set of Questions and Answers about the rights of claimants 

whose claims were potentially impacted by Dr. Wheeler’s readings. OWCP also 

shared the Questions and Answers with interested congressional offices and 

OWCP’s District Offices. 

6. Looking Forward 

In addition to the actions already taken, the Department is planning for the future. We have committed to consult regularly with NIOSH on recurring medical 

issues raised in claims litigation. If science resolves a particular issue, the Department will consider promulgating a rule to address it. Promulgating rules where the 

science is clear can lead to less litigation and help resolve miners’ and survivors’ 

claims more quickly. Both OWCP staff and the Solicitor’s Office attorneys who litigate black lung cases are on the lookout for recurring medical and scientific issues 

so that we can consult with NIOSH in a timely manner. 

We will also be enhancing our accountability review process within OWCP. 

OWCP’s National Office staff performs onsite reviews of its District Offices and assesses their performance on critical program activities such as initial claim adjudications, administering benefit payments, and performing related activities associated with financial management and program administration. Each District Office 

is reviewed based on a sample of approximately 450 case files and other documents 

reflecting the work of the particular office. 

HELPN-003 with DISTILLER

13 

We are considering adding spot audits that would require District Directors to review a sample of awards and denials after lower management reviews have been 

completed but before the award or denial is issued. The spot audits will be used as 

a quality enhancement tool and address whether the decision is appropriate, wellreasoned and in compliance with applicable statutes, regulations and policies. 

CASES PENDING BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES

As the committee has recognized, there is a backlog in black lung claims awaiting 

hearing and decision by the Office of Administrative Law Judges. The number of 

judges available to hear cases has gone down over the past 10 years from 45 to 36 

due to retirement and other departures. We are working on replacing those that we 

have lost, but that process has been hindered by sequestration reductions. In addition, the President’s fiscal year 2015 budget provides funding for OALJ to hire additional staff to address the backlog. The budget proposes a programmatic increase 

in OALJ for 10 full-time employees, $2,027,000 in general funds and $693,000 in 

Black Lung resources. In total, the budget reflects an 11.5 percent increase for 

OALJ over the fiscal year 2014 enacted budget and is the largest increase the Department has sought in 10 years. The fiscal year 2015 budget also includes a plan 

for fully replacing the automatic sequester cuts with smarter, better targeted reductions. If allowed to continue, sequestration will further reduce available Black Lung 

funding for OALJ’s administrative needs. These additional resources proposed in the 

President’s budget will increase OALJs’ ability to hear and decide claims more 

quickly. 

OALJ is also tackling the black lung case backlog in other ways. Some actions 

are directly related to adjudicating black lung cases while others are designed to 

free administrative law judges in other areas so that they have more time to devote 

to black lung cases. These actions include: 

• Hiring two new administrative law judges for OALJ’s Pittsburgh District Office 

in fiscal year 2015 to adjudicate black lung cases predominantly. In the meantime, 

an administrative law judge who had previously retired will be brought back as a 

Senior ALJ in the Pittsburgh office, where he will focus predominantly on black 

lung cases. OALJ will also be hiring two new administrative law judges for the National office in Washington. The Washington office has the largest staff of judges 

and disposes of more black lung claims than any individual district office. 

• Hiring a Senior Attorney in each OALJ District Office, instead of relying solely 

on law clerks who serve 2-year terms. A Senior Attorney would develop greater expertise in black lung law and thus be better able to assist administrative law judges 

faced with difficult issues. Given the funding issues involved, OALJ is launching 

this as a pilot program only. 

• Exploring the use of contract attorneys, who are usually former law clerks, to 

draft black lung decisions on a fixed cost per case. In the past, this has proved a 

cost-effective method of reducing decision backlogs. 

• Routinely advising represented parties in black lung cases that a decision may 

be made on the documentary record, without an oral hearing, if all parties agree. 

Where the parties do agree, OALJ will be able to proceed more quickly to a final 

disposition of the claim. 

• Monitoring the productivity of all administrative law judges with regard to the 

disposition of black lung cases, and counseling judges who are less productive. 

• Using rehired annuitants to form additional Board of Alien Labor Contract Appeals panels to dispose of Permanent Labor Certification (PERM) cases. This will 

free up administrative law judges to hear and decide more black lung cases. 

• Continuing to explore using electronic systems for hearings. This could reduce 

travel costs and conserve valuable administrative law judge time that could be devoted to decisionmaking. 

• Developing 10–15 training modules in conjunction with NIOSH to help administrative law judges and staff better understand the medical issues typically presented in black lung claims. This training could speed up the disposition of these 

claims. 

You have also asked whether the Department’s actions taken in response to the 

CPI and ABC News reports might have an impact on the backlog. The Department’s 

outreach efforts to miners whose claims contained Dr. Wheeler X-ray interpretations 

are likely to result in a significant number of new claim filings. We project approximately 330 new claims will be filed in fiscal year 2014 with an additional 300 to 

400 in fiscal year 2015 in response to the 1,000 letters sent to miners whose claims 

were denied. In addition, new claim filings thus far in fiscal year 2014 have exceeded earlier estimates. OWCP now projects 7,100 new claim filings (not including any 

new claims filed in response to the letters sent about Dr. Wheeler) by the end of 

HELPN-003 with DISTILLER

14 

this fiscal year, a 10.6 percent increase over claim filings in fiscal year 2013. Although the reason for this increase is difficult to determine, drivers likely include 

OWCP’s publication of regulations in September, 2013, implementing the Byrd 

Amendments; the increased publicity the program has received; and OWCP’s outreach efforts to the coal-mining community. The increase in new claim filings will, 

of course, be reflected in the Department’s workload at all adjudication levels, including OALJ. 

CONCLUSION

Coal miners who have sacrificed their health because of their occupation deserve 

a fair process when they file claims for black lung benefits. The actions the Department has taken will further that goal. We look forward to continuing to work with 

you to improve the program and the lives of coal miners and their families. 

Senator CASEY. Thank you, Deputy Secretary Lu. And I want to 

explain that because you and Solicitor Smith are in the same department, you’ve submitted joint testimony. So there’s joint written 

testimony, but only one oral testimony. Of course, Solicitor Smith 

will be available for questions. 

Next we’ll move to Dr. Howard. 

STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL 

INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, 

WASHINGTON, DC 

Dr. HOWARD. Good morning, Mr. Chairman, Ranking Member 

Isakson, and Senator Harkin. I would like to provide an update on 

NIOSH’s efforts to provide high-quality health surveillance for coal 

miners and to assist in ensuring accurate assessment of chest 

radiographs for coal workers’ pneumoconiosis or black lung disease. 

Surveillance for coal workers’ pneumoconiosis, a progressive lung 

disease even after cessation of coal dust exposure, was first required by the Coal Mine Health and Safety Act of 1969. It was 

quickly recognized that there was substantial disagreement between physicians in determining whether chest radiographs 

showed evidence of pneumoconiosis. 

In 1978, NIOSH promulgated regulations that took steps to ensure accurate chest radiograph readings for the NIOSH Coal Workers’ Health Surveillance Program. The regulations required physicians to meet certain requirements before participating in the 

NIOSH surveillance program and a rigorous process to evaluate 

chest radiographs for evidence of pneumoconiosis. This process is 

based on multiple independent evaluations that are summarized in 

a way that emphasizes mainstream views and minimizes the impact of extreme or outlying views. 

The NIOSH B Reader Certification Program based on these regulations trains and tests physicians for their ability to use the system from the International Labor Organization, or ILO, for standardized description or classification of changes on chest 

radiographs that are associated with pneumoconiosis. Physicians 

can become a B Reader by passing an examination in which they 

are graded on their ability to classify a group of chest radiographs 

using the ILO system. 

Currently, there are 221 B Readers in the United States, down 

from a high of 634 in 1997. Besides their role in the NIOSH surveillance program, B Readers provide classifications in non-NIOSH 

settings, such as the Department of Labor’s Black Lung Compensation Program. 

HELPN-003 with DISTILLER

15 

NIOSH was also concerned by reports from the Center for Public 

Integrity and ABC News suggesting that a B Reader involved in 

the Department of Labor’s Black Lung Compensation Program systematically chest radiographs. NIOSH took four actions in response. 

First, we immediately offered Johns Hopkins our assistance to 

help them with its inquiry. Second, NIOSH noted that the Johns 

Hopkins B Reader in question reportedly asserted that clearly visible chest radiographic changes need not be classified if the B Reader believed they had a cause other than pneumoconiosis. This is not 

consistent with the purpose of the ILO classification system. 

In response, NIOSH obtained approval from the OMB to revise 

the NIOSH form, which many B Readers use in non-NIOSH settings. The new form clearly requires that all findings described by 

the ILO classification system that are seen on the chest radiograph 

must be classified regardless of the physician’s opinion about their 

underlying cause. 

Third, NIOSH has entered into a partnership with the Department of Labor’s Office of Workers’ Compensation Programs to work 

together to establish a quality assurance program that will allow 

the Department of Labor to assess whether physicians performing 

classifications of chest radiographs in connection with black lung 

compensation cases are doing so accurately. 

Fourth, NIOSH reiterated that when it is provided with a written complaint about the ethics or competence of an individual B 

Reader that performs services in non-NIOSH settings, NIOSH 

would refer the complaint to the appropriate State licensing board 

if it involved medical interpretation. The practice of medicine is 

regulated at the State level, and State licensing boards have investigative authorities in non-NIOSH settings not available to NIOSH. 

Since 1978, NIOSH is aware of only two B Readers who have lost 

their licenses to practice medicine because of the way they classified chest radiographs. NIOSH offers its technical assistance to any 

State medical licensing board that makes the decision to investigate chest radiograph classifications performed by a B Reader. 

More information about the NIOSH B Reader program, including 

a list of best practices, is provided in my written testimony. 

Thank you, Mr. Chairman, and I am happy to answer any questions. 

[The prepared statement of Dr. Howard follows:] 

PREPARED STATEMENT OF JOHN HOWARD, M.D. 

Good morning, Mr. Chairman, Ranking Member Isakson, and distinguished members of the subcommittee. My name is John Howard and I am the director of the 

National Institute for Occupational Safety and Health, or NIOSH, which is part of 

the Centers for Disease Control and Prevention (CDC) within the U.S. Department 

of Health and Human Services (HHS). I am here today to provide an update on 

NIOSH’s efforts to provide high-quality health surveillance to coal miners to protect 

their respiratory health. 

B READER CERTIFICATION PROGRAM

The need for the B Reader Certification Program was recognized soon after 

NIOSH was established in 1970. One of NIOSH’s very first responsibilities was to 

provide ongoing, periodic health surveillance to underground coal miners, using 

chest radiographs to screen for a type of dust-induced lung disease (pneumoconiosis). The requirement to provide this surveillance was established in 1969 by 

HELPN-003 with DISTILLER

16 

section 203(a) of the Federal Coal Mine Health and Safety Act (Public Law 91–173), 

hereby referred to as the ‘‘Coal Act.’’ 

The Coal Act required that miners found to have evidence of pneumoconiosis be 

offered the opportunity for transfer to jobs with lower dust exposures to minimize 

progression of their disease. It was found at that time that there was substantial 

disagreement between physicians in determining whether chest radiographs showed 

evidence of pneumoconiosis. This was attributed in part to physicians’ lack of experience with the classification systems employed to describe chest radiographic changes 

and their lack of familiarity with the radiographic manifestations of pneumoconiosis. In response, efforts were initiated to develop a pool of physicians with the 

skills needed to provide high quality, reproducible documentation of changes in miners’ chest radiographs. These efforts led in 1978 to the regulations, codified at 42 

CFR part 37, under which the B Reader Certification Program operates. It was also 

recognized that accurate, reproducible results depended as much on the system 

within which B Readers were used as upon their individual skills. Thus, Part 37 

also included regulations describing how B Readers were to be employed in 

classifying chest radiographs for the presence and severity of changes associated 

with pneumoconiosis. 

The B Reader Certification Program trains and tests physicians for their ability 

to use a standardized system for describing changes found on chest radiographic images that are associated with pneumoconiosis. This system is called the International Labor Organization (ILO) International Classification of Radiographs of the 

Pneumoconioses. The ILO Classification System is used in many countries to provide 

a framework for reproducible ‘‘classification’’ or description of chest radiograph quality and the presence and severity of changes associated with pneumoconiosis on 

chest radiographs. The focus of the classification is to have standardized, reproducible reporting of what changes can be seen on the chest radiographs. Relatively few 

physicians are familiar with the system since it is not typically used to provide clinical care. Rather, a classification using the ILO system (sometimes referred to as 

a ‘‘B reading’’) is more often used in epidemiological research, health surveillance, 

legal and compensation systems where greater standardization is required. Making 

a clinical diagnosis about what medical condition or disease has caused visible radiographic changes that are classified in an individual is a separate process from 

image classification. Clinical diagnosis involves considering additional clinically relevant information, for example: work or exposure history, medical history and physical examination, and the results of other medical tests. 

Physicians seeking to become B Readers can learn to perform ILO classification 

using a self-study syllabus available from NIOSH or can take a course periodically 

offered by the American College of Radiology. Physicians can become B Readers by 

taking a certification examination in which they are graded on their ability to classify a group of chest radiographs. They must take a re-certification examination 

every 4 years to maintain their certification. Over the years, the certification examination has had an approximately 50 percent pass rate and the recertification examination an approximately 85 percent pass rate. There are currently 221 B Readers 

in the United States—down from the high of 634 in 1997. 

Part 37 specifies how B Readers are employed to classify chest radiographs for 

the NIOSH Coal Workers’ Health Surveillance Program (CWHSP). At least two 

readers independently classify each chest radiograph. If the first two readers are in 

disagreement, a third reader classifies the film and, if there is sufficient agreement, 

a median classification is used. However, if there is still insufficient agreement, up 

to five readers may be used. This system inherently assures that classifications represent mainstream views and minimizes the impact of extreme individual classifications that differ from those of other B Readers. 

The B Reader Certification Program was developed to improve the quality of 

NIOSH’s CWHSP and the same regulations that established the B Reader Program 

also established an appropriate system of employing B Readers to optimize the accuracy and reproducibility of their classifications. Over time, successful completion of 

the B Reader Certification Examination has been recognized internationally as evidence of competence in using the ILO Classification System to classify changes on 

chest radiographs. Even though only physicians with U.S. licensure can become B 

Readers, NIOSH allows international physicians and scientists to take the B Reader 

certification and recertification examinations. If they pass, their names are listed on 

the NIOSH website. The website currently lists 63 of these successful international 

examinees. 

HELPN-003 with DISTILLER

17 

BURDEN OF PNEUMOCONIOSIS DOCUMENTED BY THE COAL WORKERS’ HEALTH

SURVEILLANCE PROGRAM

The ability of the CWHSP to obtain accurate classifications of underground coal 

miners’ chest radiographs has allowed it to longitudinally monitor the burden of 

pneumoconiosis in U.S. underground coal miners since the 1970s. Because it takes 

5 years to complete a full national surveillance cycle, NIOSH typically shows pneumoconiosis rates over 5-year intervals. 

Pneumoconiosis most often takes several decades to become apparent, so only 

trends for those engaged in underground coal mining for 20 years or more are discussed. 

In this tenure group, prevalence of pneumoconiosis in CWHSP participants was 

at its highest, 29.3 percent, in the 5-year period of 1970–74. Rates fell continuously 

after that until 1995–99, reaching a low of 3.2 percent. Rates subsequently increased to 6.1 percent and 6.4 percent in 2000–2004 and 2005–2009, respectively. 

NIOSH will soon complete another 5-year period and it appears that rates will be 

similar. Prevalence rates have been higher among underground coal miners working 

in the Central Appalachian region and in smaller mines, although pneumoconiosis 

continues to be a problem nationwide. 

NIOSH does not have similar longitudinal data for surface coal miners, who have 

not previously been required to be offered health surveillance. This situation will 

change as of August 1, 2014, when the Mine Safety and Health Administration’s 

new respirable coal mine dust regulations go into effect. At that time, NIOSH’s 

CWHSP will be expanded to include surface coal miners. Required health surveillance will also add a lung function test called spirometry to the screening that is 

offered to coal miners. 

UPDATING THE B READER CERTIFICATION PROGRAM TO DIGITAL FORMAT

In recent years, most clinical facilities have moved from film-based chest radiography to digital chest imaging. In response, NIOSH assisted the ILO to enable digital chest images to be classified using the ILO system. This involved doing research 

to document technical approaches that would yield the same classification regardless of whether an individual was evaluated using a film-based chest radiograph or 

a digital chest image. NIOSH is now updating the B Reader Certification Program 

to digital format. NIOSH has entered into a contract with the American College of 

Radiology to accomplish this work, which will include updating the B Reader Certification Program’s educational syllabus, certification examination, and recertification examination into modern digital format. This modernization of the program 

is critically important for us to maintain an adequate pool of physicians able to classify chest radiographs using the ILO Classification System. 

B READER CLASSIFICATIONS IN NON-NIOSH SETTINGS

The B Reader Certification Program is the only formal national program that provides training and evidence of competency in classifying chest radiographs according 

to the ILO Classification System. Because there is also a need for classification of 

chest radiographs using the ILO Classification System in a range of non-NIOSH settings, B Readers have been sought after to provide classification in those settings. 

Examples include research, industry health surveillance programs, legal proceedings, and various governmental eligibility programs, including the Department 

of Labor’s Black Lung Compensation Program. Examples of non-NIOSH employers 

in these settings include academia, medical practices, industry, legal firms, and 

other governmental agencies. 

Because NIOSH’s authority for operating the B Reader Certification Program is 

tied to operation of the Coal Workers Surveillance Program, we do not have any formal role or authority in many of these settings. For example, we do not have the 

authority to obtain information about what non-NIOSH classifications are performed, the results of the classifications, or to obtain the images that were classified. Also, many of these settings—chiefly adversarial proceedings—do not employ 

B Readers in a way that optimizes accuracy and mainstream classifications, as I 

have described for the Coal Workers Surveillance Program. 

Thus, over the decades that the B Reader Certification Program has been in existence, NIOSH has not monitored or guaranteed the accuracy of classifications performed by B Readers in non-NIOSH settings. For those seeking to assess the quality 

of classifications performed in non-NIOSH settings, NIOSH has developed a set of 

recommended practices for obtaining accurate classifications of chest radiographs, 

which are posted on the NIOSH website. Classifications resulting from practices 

such as using a summary classification of multiple independent readers, blinding 

HELPN-003 with DISTILLER

18 

the readers to the source of the radiograph, picking readers randomly (or taking 

other steps to assure they are in the mainstream), and conducting quality assurance 

can in general be viewed as more credible than classifications that do not employ 

these measures to optimize accuracy. 

NIOSH ACTIONS IN RESPONSE TO CENTER FOR PUBLIC INTEGRITY/ 

ABC NEWS REPORTS

Even though NIOSH has a limited role and a limited ability to address chest 

radiograph classifications performed in non-NIOSH settings, we still want to do 

what we can to promote high quality, accurate classifications of chest radiographs. 

We also believe that B Readers should demonstrate high levels of ethics and integrity, which is why we developed a B Reader Code of Ethics. Devotion to accurate 

classification of chest images is an important feature of the Code. In view of this, 

NIOSH was disturbed by evidence presented in the Center for Public Integrity and 

ABC News reports suggesting that a B Reader involved in Black Lung compensation 

cases systematically misclassified chest radiographs. NIOSH has taken several actions in response to these reports. 

First, when the particular B Reader’s employer, Johns Hopkins University, announced that they were suspending their program of providing expert medical testimony for legal firms, NIOSH offered Johns Hopkins help with their internal investigation. NIOSH subsequently answered questions and provided information to help 

them with their investigation. 

Second, in reading the Center for Public Integrity report and viewing the companion report on ABC News, NIOSH noted that the particular B Reader reportedly 

argued he should not classify clearly visible chest radiographic changes because he 

thought they had a cause other than pneumoconiosis. As I have previously described, this is not consistent with the purpose of the ILO Classification System, 

which provides a standardized way to record the changes that can be plainly seen 

on a radiograph. In response, NIOSH obtained approval from the Office of Management and Budget (OMB) to revise the NIOSH form which many B Readers use in 

non-NIOSH settings to report the results of chest radiograph classifications. The 

new form clearly requires that all findings described by the ILO Classification System that are seen on the chest radiograph must be classified regardless of opinions 

about underlying cause, which are entered elsewhere on the form. 

Third, NIOSH has been in discussions with the Department of Labor (DOL), Office of Workers’ Compensation Programs (OWCP), which operates the Black Lung 

Compensation Program about the feasibility of implementing a quality assurance 

program to determine whether B Readers are providing accurate classifications of 

chest radiographs for consideration in compensation proceedings. NIOSH and 

OWCP have agreed in principle to establish the program and are currently evaluating technical issues such as the availability of chest radiographic images for reclassification, appropriate methods for using re-classifications to assess B Reader 

performance, and how this information will be used for quality improvement. It 

should be noted that the quality assurance program will operate separately from the 

process of adjudicating individual compensation claims. We hope to implement the 

quality assurance program during fiscal year 2015. 

Fourth, for many years, NIOSH has had a policy that if provided with a written 

complaint about the ethics or competence of an individual B Reader that performed 

services in non-NIOSH settings, NIOSH would refer the complaint to the appropriate State Medical Licensing Board. The reasoning for this policy was that the 

practice of medicine in the United States is regulated at the State level and thus 

State Medical Licensing Boards have investigative authorities in non-NIOSH settings that are not available to NIOSH. State Boards also have the ability to restrict 

or suspend a physician’s privilege to practice medicine based on the outcome of an 

investigation. It should be noted that since the B Reader Certification Program was 

established in 1978, we are aware of only two B Readers who have lost their licenses to practice medicine because of the way they classified chest radiographs. In 

response to the current situation, NIOSH is taking the additional action of formally 

offering our technical assistance to any State Medical Licensing Board that makes 

the decision to investigate chest radiograph classifications performed by a B Reader. 

NIOSH will also consider requests for technical assistance from other government 

agencies that wish to develop quality assurance programs or to investigate the performance of individual B Readers in chest image classification. 

CONCLUSION

Since the current NIOSH B Reader Certification Program was established in 

1978, it has played a critical role in ensuring the availability of a pool of physicians 

HELPN-003 with DISTILLER

19 

able to classify chest radiographs for the NIOSH Coal Workers’ Health Surveillance 

Program using the ILO system. Part 37 also specifies that readers be employed in 

a way that favors mainstream classifications and minimizes the impact of outliers, 

thus optimizing the accuracy of chest radiograph classifications used by the surveillance program. Because the B Reader Certification Program is unique in providing 

formal documentation of the competency of physicians to classify chest radiographs 

using the ILO system, B Readers are often sought after to perform classifications 

in non-NIOSH settings. These settings do not always follow NIOSH recommendations to ensure high quality classifications. 

NIOSH has taken action to help DOL in its efforts to improve the quality of classifications submitted for consideration by the Black Lung Compensation Program, 

and, within our ability to do so, NIOSH stands ready to assist others undertaking 

similar efforts in other non-NIOSH settings. 

Thank you for the opportunity to provide this testimony. I am pleased to answer 

any questions you may have. 

Senator CASEY. Thank you, Doctor. We’ll start a round of questions. 

Deputy Secretary Lu, I wanted to ask you about the question of 

resources. We’ve had some discussion about this. I’ve noticed that 

over time, especially in the last several months, and really within 

the last year, when you consider the additional responsibilities that 

you have to deal with as well as the resources you’re going to need 

because of the new initiatives that you’ve embarked upon, I believe 

that you’re going to need substantially more resources for the work 

that you’re doing. 

We know that based upon data from the Department, we esti- mate that approximately $10 million in funding above the president’s fiscal year 2015 budget request for the—and I’m talking now 

about the Office of Administrative Law Judges—would be necessary to begin reducing and ultimately trying to eliminate the 

backlog. So I’d ask you, in particular, will you continue to work 

with us to ensure, not just to try, but to ensure that the Department has the resources to adequately address the backlog of cases? 

Mr. LU. Mr. Chairman, I’d like to first of all commend you on 

your longstanding leadership on this issue. As I indicated in my 

opening statement, we have asked for an 11.5 percent increase in 

fiscal year 2015 for the ALJs. But as you’ve recognized, the ALJ 

caseload is increasing both because of the Dr. Wheeler cases and 

because of other factors like greater publicity and greater outreach. 

So the Department is absolutely interested in working with you 

and your staff to ensure that we have sufficient resources on this 

important issue. 

Senator CASEY. We’ve got some work to do on that, and I’m 

grateful for your willingness to work with us on that. 

Solicitor Smith, I wanted to ask you about the allegation that’s 

often made that miners are allowed to file as many claims as they 

like no matter how many times their claims are denied. Can you 

describe how the process for resubmitting a previously denied claim 

differs based on whether or not it falls within the 1-year time 

limit? 

Ms. SMITH. Yes, Senator. Thank you. This is an issue which 

many courts have looked at, and all of them have felt that the rule 

is proper. There are two possibilities. If a miner has been denied 

a claim within a year he may move to reopen that claim on the 

basis of there’s a mistake or his condition has changed. 

I’d like to point out that a coal mine operator also has that ability to ask for a modification of a claim where benefits were awardHELPN-003 with DISTILLER

20 

ed within 1 year after the last payment of benefits. Both of those 

re-opening have to be on the basis of either a mistake or a change 

in condition. If an award is granted or denied, it is on the basis 

of the current claim. 

On the other hand, after 1 year, a miner may file a claim for new 

benefits. It is a new claim. It is a new time period. That’s because, 

as Dr. Howard has pointed out, black lung disease can be progressive and latent even after there’s been a cessation of exposure to 

coal mine dust. 

What a miner must prove in that situation as a threshold matter 

is that there has been a change in some condition of eligibility 

since the last claim. If they can’t prove that as a threshold matter, 

the claim is denied. If then they can prove that the change in condition has made it clear that they have black lung disease and it’s 

totally disabling, they would be able to get an award of benefits. 

But that award of benefits does not go back to the previous time. 

It only goes back from when that new claim has been made. Again, 

this is because the black lung can be progressive and latent. So if 

there are changes in conditions and now the miner is eligible when 

they may not have been eligible before, we don’t want to bar them 

forever when they have become eligible. 

Senator CASEY. You’re talking about the situations where you 

have a new claim. 

Ms. SMITH. Right. That’s a new claim. It’s not a reopening of an 

old claim. It does not go back to the time period of the old claim. 

Once the old claim has been denied for over a year, it’s barred by 

res judicata. You cannot reopen that claim. But if you can prove 

that you have a change in your condition and you are now eligible, 

you can file a new claim for a new time period. 

Senator CASEY. Before we wrap this up, why don’t we put on the 

record your best definition of res judicata. 

Ms. SMITH. Res judicata means that the claim is final and you 

cannot reopen it. 

Senator CASEY. Thanks very much. 

Senator Isakson. 

Senator ISAKSON. Thank you, Mr. Chairman. I have one question 

for Dr. Howard. 

Since the CPI report was published, NIOSH has created a new 

form which requires that all findings described by the ILO classification system that are seen on the chest radiograph be classified—and you mentioned this in your opening remarks—regardless 

of opinions about the underlying cause. My question is this: Under 

the new system, how would a physician be able to exercise their 

professional judgment or annotate their own medical conclusion regarding other causes if this is classified? 

Dr. HOWARD. Thank you, Senator Isakson. They can certainly do 

that by providing their own medical interpretation of the findings 

that they see. So there are two parts to the process of looking at 

a chest x-ray. One is to assess what they see visibly in terms of 

the profusion score, et cetera, all the findings on the ILO form, and 

those have to be recorded. Then the second process is their medical 

interpretation of those findings. So they can do both. 

Senator ISAKSON. So if it’s classified, what does that classification mean? What restriction does that imply? 

HELPN-003 with DISTILLER

21 

Dr. HOWARD. The restriction on classification, the actual reading 

of what’s on the x-ray, is within the bounds of the ILO classification system. The interpretation of what is seen on the x-ray is a 

medical activity, a diagnostic activity. So the physician can draw 

his or her own conclusions about what they see. But the accuracy 

of what they see is what we certify, what they’re certified for as 

a B Reader. 

Senator ISAKSON. I don’t want to belabor this, but this is an important question, I think. So the ILO classification system sets out 

the parameters by which a doctor may make a medical determination of the radiograph? 

Dr. HOWARD. No. The ILO classification system sets out the parameters for looking at the visible findings on the x-ray and has 

a number of different categories that the physician checks or does 

not check. That’s what we train physicians to do, to match that 

with the ILO classification system. And then at the end of that 

process, they can add their interpretation about what they’ve seen. 

But the two are different. 

Senator ISAKSON. So they’re not professionally restricted 

from—— 

Dr. HOWARD. No. We do not control the practice of medicine, per 

se. But we do certify people on the accuracy with which they read 

an x-ray according to the ILO classification system. 

Senator ISAKSON. Thank you, Dr. Howard. That’s my only question. 

Senator CASEY. Thank you, Senator Isakson. 

Senator Harkin. 

OPENING STATEMENT OF SENATOR HARKIN

The CHAIRMAN. Thank you very much, Mr. Chairman. First, let 

me commend you for your great leadership on this very important 

issue. I thank Senator Isakson for being a good partner in helping 

to try to change some of the ways we do business with regard to 

coal miners. 

We often talk about how coal produces some of the cheapest electricity and energy that we have in the United States. That’s true 

for a number of reasons. One is because the forces of nature created the coal over hundreds of millions of years. 

But I think it’s also true because those who mine the coal have 

not been adequately compensated in the last century or so that 

we’ve been mining coal in this country. They’re compensated both 

in terms of wages and salaries, which are much better now because 

of the work of the United Mine Workers and others. But the other 

thing is the compensation that goes to these miners who develop 

serious health problems because of mining coal. 

Many of the good producers, good coal mine owners, have taken 

great steps to keep the dust down to provide that miners do not 

inhale a lot of coal dust when they’re mining. But there’s still a lot 

of bad actors out there, too, who have not done that. 

The Department has now issued a new rule—or I think you’re in 

rulemaking now—for keeping that level of dust down. Is that correct, Mr. Lu? 

Mr. LU. That is correct. 

The CHAIRMAN. When will we see that rule? 

HELPN-003 with DISTILLER

22 

Ms. SMITH. That rule is effective August 1st. 

The CHAIRMAN. So it is effective August 1st? 

Ms. SMITH. Yes. 

The CHAIRMAN. I’ll be checking to see how that works. Coal companies claim that costs them a lot of money. Well, of course, it does. 

But what’s the cost of a miner that lives out the remainder of his 

life for 30 or 40 years unable to breathe, hooked up to an oxygen 

machine, unable to even do some of the most rudimentary things 

of daily life. 

As the chairman knows, I come at this from a personal standpoint. My father mined coal for over 23 years in Iowa. A lot of people don’t know that Iowa had a lot of coal. We were once the second 

largest coal producing State in the Nation. John L. Lewis, the great 

coal mine leader, came from Iowa, not from West Virginia or the 

chairman’s State, Pennsylvania. 

But in those days, they had nothing. I mean, they worked underground, and they had nothing. They didn’t call it black lung. I 

never heard that until I came here. But we always called it the 

miner’s cough, the miner’s lung, and that’s just what they had. 

They might not have been totally disabled, but, boy, their lives 

were not worth very much in terms of what they could do physically as they reached into their fifties, sixties, and seventies. So 

I’m glad that we got the rule out. 

Second, the chairman hit upon the backlog of cases. But I also 

want to know what the Department basically—you touched on 

that, Mr. Lu, in your testimony—how we’re leveling the playing 

field. A lot of times, these miners don’t have a lot of money. They 

don’t have adequate counsel. They file their claim. It goes to Dr. 

Wheeler, who I hope is not a part of our program any longer. But 

they don’t have any recourse to adequate counsel. 

How are we going to help those individuals who live in remote 

places, small communities? How are we going to help them level 

that playing field? 

Maybe Ms. Smith from the solicitor’s office could respond. 

Ms. SMITH. Senator, there’s a few things that we’ve been doing 

lately. We have really been thinking about this, what we can do for 

miners who do not have counsel, which is why in our pilot program, where we have a miner who has filed a claim and he’s unrepresented, we have an initial determination that he is eligible for 

benefits—in order to strengthen his evidence, because he does not 

have counsel—if there is evidence to the contrary, we are sending 

that evidence back to his original doctor to reassess it, to come up 

with up-to-date medical evidence, something that unrepresented 

miners would not do on their own. That’s one thing that we’re 

doing to try to strengthen the medical evidence. 

Second, at the ALJ level, in the same circumstances where we 

have an unrepresented miner, I have instructed officers in the solicitor’s office, who normally do not get involved in these cases, to 

look for those cases, to get the medical evidence which may have 

been submitted at the ALJ level, and send it back to the original 

doctor. Sometimes the original doctor’s evidence is 2 or 3 years old, 

so it’s considered outdated—send it back and get more evidence. 

The CHAIRMAN. What’s the backlog? I don’t even know that number. Do you know the number, Chris? 

HELPN-003 with DISTILLER

23 

Mr. LU. Senator, we can get you the number. What I can tell you 

is that the number of cases that have been filed has increased from 

about 6,400 in fiscal year 2013. We believe it will be about 7,400 

in fiscal year 2014. So the number of claims filed has increased by 

about 1,000, and we can get you more detailed information on what 

the backlog numbers are. 

The CHAIRMAN. Counsel has told us there’s probably around 

14,000. Does that sound about right? 

Mr. LU. I think that’s about right. 

The CHAIRMAN. I hope and trust that we’re going to be providing 

the kind of support, legal support and otherwise, so that we don’t 

just wait until they all die off. They deserve compensation, and 

they deserve it now. 

Thank you. 

[The prepared statement of Senator Harkin follows:] 

PREPARED STATEMENT OF SENATOR HARKIN

I would like to thank Senator Casey for holding this important 

hearing so that we can learn more about the struggles that coal 

miners and their families face when filing for benefits under the 

Black Lung Benefits Act. I would also like to thank my colleagues 

Senators Rockefeller and Manchin and Congressman George Miller 

for all their work helping us try to address the issues raised by the 

Center for Public Integrity and others. It is my hope that this hearing shines a brighter light on these issues and helps inform our 

work on legislation to try to restore justice for our Nation’s coal 

miners. 

Although we don’t really mine coal in Iowa anymore, protecting 

the health, safety, and benefits of our Nation’s miners has always 

been important to me because of my father, who was a coal miner. 

The topic of today’s hearing—black lung or what we used to call 

miners’ lung—is personal for me because I know what it is like to 

see a loved one fight for breath after years of working in clouds of 

coal dust and struggle to support a family. 

My father’s work as a coal miner was long before the passage of 

the Coal or Mine Acts and the establishment of a benefits program 

for miners stricken with debilitating black lung. When my father 

reached the age of 65 in 1951—and I was 11 years old—his health 

was pretty poor from his years laboring in the mines. At most, he 

could work odd jobs like painting houses or fixing things up, but 

even that was hard. 

His total Social Security check at that time was about $120 a 

month, the sole source of income for our family. We had no outside 

income, no savings, no stocks, just the little house that we lived in. 

My father would go and get his lungs cleared out at Mercy Hospital 

in Des Moines because the nuns would let him pay what he could 

when he could. He was really happy when he finally got his Medicare card because he didn’t have to rely on charity anymore, and 

he felt like that was something that he earned from his years of 

hard work. 

Although conditions in the mining industry have improved from 

my father’s time, many of the same issues remain—coal miners are 

still getting sick just from going to work and even though there is 

a system in place to provide them benefits and healthcare when 

HELPN-003 with DISTILLER

24 

they become disabled, many still struggle to take care of their families. 

In reading the remarkable investigative reports that tell the stories of countless coal miners and their families who were denied 

justice, it seems to me that one common theme explains it all— 

greed. 

For decades, coal miners have gone underground and done the 

most dangerous of jobs so they could provide for their families and 

help build America into the economic power it is today. Some were 

lucky to have a union looking out for them, while others had to 

fend for themselves. 

I can’t help but believe that greed and the desire to reap large 

profits lead some coal companies to fight against miners and the 

government every time issues regarding miner safety and health 

and benefits are debated. Not all, but historically, far too many coal 

operators have put profits ahead of the safety and health of the 

miners they employ. A recent example of this was the terrible disaster at the Upper Big Branch Mine that took the lives of 29 men. 

When we tried to pass a reasonable piece of legislation—the Byrd 

bill—to strengthen our mine safety laws to address the problems 

raised by the investigations, we were blocked by the coal industry 

and their allies in Congress. 

For years, some of these same companies have worked together 

with allies in the legal and medical communities to deny miners 

and their families justice and a fair shot to receive benefits to 

which they are entitled. Sadly, it is a playbook that has become all 

too familiar, use every trick and resource advantage to game the 

system long enough for miners to give up hope and fight the government tooth and nail when it takes actions to protect miners that 

could eat into the industry’s profits. 

Although this hearing is focused on black lung benefits, I would 

be remiss if I didn’t also mention how pleased I was when the Department of Labor’s Mine Safety and Health Administration announced in April that it had finalized a strong rule to prevent miners from developing black lung disease in the first place. I strongly 

support the Department’s efforts to combat black lung and hope 

that once these protections are in effect, the miners that make up 

today’s workforce won’t suffer from black lung and need to file 

claims for benefits in the first place. 

In closing, I would like to commend the Department of Labor for 

the actions that it has already taken to address the problems 

plaguing the black lung benefits program, including the pilot program to help strengthen miners’ medical evidence and expand legal 

assistance. Moreover, I was encouraged that DOL recently announced intentions to promulgate a regulation to reform the black 

lung program. Based off the information in the reports, the testimony from today’s hearing, and input from miners and other stakeholders, it is my hope that the Department puts forth a robust rule 

to make the system more efficient and fair. I would also like to 

thank the National Institute for Occupational Safety and Health 

(NIOSH) for participating in today’s hearing and for all the great 

research that it produces to help make miners healthier and safer 

on the job. 

HELPN-003 with DISTILLER

25 

At the end of the day, if a miner is willing to travel into the bowels of the earth every day knowing that he may one day suffer from 

a lung disease, the least we can do is make sure he has a fair shot 

at justice and that the cards aren’t stacked against him when he 

applies for benefits to support his family. 

Senator CASEY. Mr. Chairman, thank you very much. 

I know we’re running out of time for this panel. But I wanted 

to ask Dr. Howard a question about the prevalence of black lung 

disease. We sometimes hear people assert that the approval rates 

for black lung benefits are driven more by public policy considerations than by the actual circumstances or the actual incidence, I 

should say, of dust induced lung disease. 

Based upon your knowledge, what’s the scientific evidence, as 

best you can summarize it, about the prevalence of black lung disease? 

Dr. HOWARD. Thank you, Senator. We publish at NIOSH 5-year 

prevalence rates. We wait until 20 years or more, because this is 

a slow, progressive disease. Starting back in the 5-year time period 

of 1970 to 1974, the prevalence rate was 29.3 percent. It dropped 

down considerably to around 3.2 percent, which was the lowest, in 

the period 1995 through 1999. And then recently, 2000 to 2004, it 

rose to 6.1 percent, and in 2005 to 2009, which is our last 5-year 

prevalence period that we’re reporting on currently, it is 6.4 percent. 

We’re going to complete our most recent 5-year report soon, and 

we can provide you with those figures. 

Suffice it to say that prevalence rates have risen, as you said. 

They have spiked and predominantly among underground coal miners in the Central Appalachian region of the United States and in 

smaller mines, although coal workers’ pneumoconiosis continues to 

be a nationwide problem. 

We don’t have any data with regard to surface miners, and we’re 

awaiting, as Ms. Smith pointed out, the new MSHA coal dust rule, 

which goes into effect August 1st. At that time, surface coal miners 

will be covered, and we’ll be assessing the prevalence of coal workers’ pneumoconiosis in that population also. 

Senator CASEY. Doctor, I want to make sure I got this right. 

What years was the prevalence 3 percent? 

Dr. HOWARD. That was the lowest period of time, and that was 

1995 through 1999. Since that time, throughout the decade of 2000, 

it has risen. Our latest numbers are 6.4 percent prevalence. 

Senator CASEY. So more than double. 

Dr. HOWARD. Exactly. 

Senator CASEY. Thank you. I’ll have more questions for you for 

the record after the hearing, because I know we’ve got to transition 

here. 

Before I wrap up, Solicitor Smith, I wanted to ask you about one 

part in your prepared testimony, where the Department states, 

‘‘Survivors whose claims were denied more than 1 year ago have 

no avenue for relief.’’ I want to ask you what that means. Does it 

mean that survivors’ claims that were denied using evidence from 

Dr. Wheeler cannot be either reopened or modified if they were denied more than 1 year ago? And does it also mean that these survivors are unable under current statutes to ever receive benefits? 

HELPN-003 with DISTILLER

26 

Ms. SMITH. Unfortunately, yes, Senator. I will have to go back 

and give you my plain language view of res judicata. I’ll try to explain that. Basically, a survivor’s claim that was denied more than 

a year ago, as I discussed, could not be reopened. Then the question is could they file a new claim. 

The basis of a miner filing a claim is that his condition could 

have changed since then. However, the issue in a survivor’s claim 

is whether the death of the coal miner was caused by black lung 

disease. Because the coal miner was dead and is dead, there is no 

change in the condition of his death. So under the principals of res 

judicata, it’s final. There’s not a new issue to be dealt with. 

This could be taken care of by legislation, which could allow a 

survivor whose claim was denied more than a year ago and who 

has Dr. Wheeler evidence to be basically legislatively relieved from 

the bar of finality and to reopen a claim, but it would have to be 

done through legislation. 

It could also be done for miners through legislation. As I discussed with you before, a new claim for a miner is for a new time 

period. But in that situation, if they were relieved from that bar, 

they could go back to the date of their original claim. Right now, 

they cannot do that when they file a new claim. 

Senator CASEY. Thank you. So you’ve told us we need statutory 

change. 

Ms. SMITH. Exactly. 

Senator CASEY. Thank you very much, and I know each of us will 

probably have more questions, but we’re going to transition. 

Senator CASEY. I want to thank all three of our witnesses for 

being here and for your testimony and for your public service. 

We will go to panel No. 2, and I’ll begin the introductions while 

our witnesses are taking their seats. I’ll just run through the biographies for each so we can continue to move forward. 

First, John Cline. John Cline is an attorney in Pitney View, WV, 

who specializes in the representation of Federal black lung claimants. Mr. Cline earned his J.D. degree from the West Virginia College of Law in Morgantown, WV. 

Prior to starting private practice in 2005, he spent many years 

working on behalf of coal miners as a VISTA volunteer, Black Lung 

Association member, benefits counselor, and lay representative. Mr. 

Cline grew up in East Aurora, New York, and is married to his 

wife, Tammy, and is the father of three children. 

Mr. Cline, thank you for being here. 

Dr. John Parker has been practicing at West Virginia University 

since 1985. He has published numerous peer-reviewed studies and 

textbook chapters on occupational lung disease. He has consulted 

for the World Health Organization and the International Labor Office on issues related to respiratory diseases and traveled the world 

over doing teaching and training related to occupational lung disease. 

He is currently a professor and chief of Pulmonary and Critical 

Care Medicine at West Virginia University. Dr. Parker is married 

to his wife, Christine, and has two children, Josh and Katie. 

Doctor, thank you for being with us. 

Robert Bailey, Jr., is a retired coal miner and member of the 

United Mine Workers of America with complicated black lung disHELPN-003 with DISTILLER

27 

ease. He began working in the coal mines in July 1972 after graduating from high school. He retired after 361⁄2 years due to the debilitating effects of black lung disease. 

Mr. Bailey was born in Bluefield, WV, and has been married to 

Brenda Bailey for 41 years. They have three children and nine 

grandchildren. 

Mr. Bailey, thank you for being with us. 

Robert Briscoe, our fourth witness on this panel, is a principal 

and senior consultant with the New York office of the actuarial 

firm of Milliman. Mr. Briscoe specializes in the valuation and cost 

determination of individual large and long-term workers’ compensation claims, particularly occupational disease. 

He has worked on analysis of compensation for occupational lung 

disease since the early 1970s. He is also Director of the American 

Society of Workers’ Compensation Professionals and New York 

Workers’ Compensation Policy Institute. 

Mr. Briscoe, thank you very much. 

I’ll ask our witnesses to keep your testimonies to 5 minutes, and 

we’ll do a round of questions after that. 

Mr. Cline, you can start. 

STATEMENT OF JOHN CLINE, ATTORNEY, PINEY VIEW, WV 

Mr. CLINE. Thank you, Chairman Casey, Ranking Member 

Isakson, Senator Harkin. 

As you know, the Coal Mine Health and Safety Act is intended 

to protect the health and safety of working miners and also to provide modest benefits when miners become totally disabled from 

black lung disease. Like all workers’ compensation programs, it is 

remedial and intended to provide benefits at the time of need. 

But in order to qualify, a disabled miner or widow must engage 

in fairly complex, adversarial litigation and must prevail against 

large coal companies with experienced attorneys and significantly 

greater resources. In addition, as revealed by the Pulitzer prize 

winning articles by Chris Hamby and the Center for Public Integrity plus the news coverage of ABC, the adversarial process is not 

only complex, but it has been abused by deceptive tactics by coal 

companies and their attorneys, or at least some of them. 

In my written statement, I provided five examples, and I would 

like to focus my remarks today on the case of Gary Fox, who I represented near the end of his life. In short, Mr. Fox was born in 

1950. After high school, he entered the Army and served in Vietnam. He worked as a coal miner for 32 years, from 1974 to 2006. 

Three years later, he died of complicated black lung at the age 

of 58. He had what is being recognized now as a very aggressive 

form of complicated pneumoconiosis that seems to progress more 

rapidly. But if we take a closer look, there could have been a different outcome, in my opinion, if the purposes of the act had not 

been subverted. 

In 1997, the West Virginia Occupational Pneumoconiosis Board 

issued a report to both Mr. Fox and his employer, Elk Run Coal 

Company, stating that Mr. Fox’s x-ray findings were consistent 

with progressive massive fibrosis, another term for complicated 

black lung. However, Mr. Fox’s treating physicians also were concerned about the possibility of lung cancer, and they removed a 5 

HELPN-003 with DISTILLER

28 

centimeter mass from his right upper lung that, thankfully, was 

not cancer, but the local pathologist did not diagnosis black lung, 

even though he said it contained numerous anthracotic deposits. 

Mr. Fox was still working but realized that he needed to get out 

of the dust and filed a claim for Federal black lung benefits. His 

claim was approved, but Elk Run appealed. Elk Run, who was represented by experienced attorneys from the law firm of Jackson 

Kelly, hired two expert pathologists who both found that the samples of Mr. Fox’s lung tissue actually were consistent with complicated black lung. 

Lawyers and judges familiar with black lung litigation know that 

pathology is the gold standard and that Elk Run’s two expert pathology reports met the requirements for benefits under the act. In 

other words, Elk Run knew that Mr. Fox qualified. But Elk Run’s 

attorneys not only withheld those two reports, but also used the 

discredited opinion of the local pathologist to convince four reviewing expert pulmonologists and the administrative law judge that 

Mr. Fox did not have black lung at all. 

Without black lung benefits, Mr. Fox continued working until 

2006, when he was too short of breath to continue. When Elk Run’s 

deception was later disclosed to the administrative law judge who 

had denied his earlier claim, the judge aptly said that Elk Run’s 

actions ‘‘were really misleading the court, misleading the witnesses, 

and tainting the witnesses’ testimony.’’ So if Mr. Fox had prevailed 

in his first claim and been able to get out of the dust 8 years sooner as the act intended, his life may have been prolonged. 

In response to Mr. Fox’s case and others, as mentioned earlier, 

the Department has announced that it will consider a new regulation requiring disclosure of medical evidence, ‘‘to ensure that miners have full access to information about their health and that accurate benefit determinations are made.’’ I would add that in a program that is intended to protect the health of miners, it makes no 

sense to withhold medical information that would adversely affect 

their health. Requiring the disclosure is the only way, I think, to 

properly protect the health of miners. 

Mr. Fox asked me to pursue this issue. He knew it wouldn’t benefit him, but he dearly hoped that it would help others not to have 

to go through the same experience. 

I just want to make a brief comment about the problem of administrative delays, particularly at the ALJ level, that are creating 

a great deal of hardship for claimants waiting for benefits and 

making it even more difficult for them to get legal representation. 

There is just an urgent need for more ALJs, more clerks, and more 

up-to-date technology. 

Thank you for considering my remarks. 

[The prepared statement of Mr. Cline follows:] 

PREPARED STATEMENT OF JOHN CLINE

Chairman Casey, Ranking Member Isakson, and Senators, my name is John 

Cline, and I have represented miners and widows with Federal black lung claims 

as a lay representative from 1993 to 2005 and as a lawyer from 2005 to the present. 

THE BLACK LUNG BENEFITS PROGRAM

When President Nixon submitted the Coal Mine Health & Safety Act to Congress 

in 1969, he recognized that: 

HELPN-003 with DISTILLER

29 

1See http:/www/msha.gov/SOLICITOR/CoalAct/69hous.htm at 3–4. 2 As stated by a long term defense attorney in an article published in the West Virginia Law 

Review in 2003, ‘‘Currently . . . [Federal black lung] claimants must confront the vastly superior 

economic resources of their adversaries: coal mine operators and their insurance carriers. Often, 

these parties generate medical evidence in such volume that it overwhelms the evidence supporting entitlement that claimants can procure.’’ William S. Mattingly, Id Due Process is a Big 

Tent, Why Do Some Feel Excluded from the Big Top? 15 W. Va. L. Rev. 791, 792 (2003). 

See also Brian C. Murchison, Due Process, Black Lung, and Shaping of Administrative Justice, 54 Admin. L. Rev. 1025, 1030 (2002). 

‘‘[d]eath in the mines can be as sudden as an explosion or a collapse of a roof 

and ribs, or it comes insidiously from pneumoconiosis or black lung disease.’’ 1

The purpose of the Act was to protect miners on the job and also to provide modest 

benefits to coal miners and their dependents in the event of a miner’s death or total 

disability from black lung. 

Like other workers’ compensation programs, it is remedial and intended to provide benefits at the time of need. In order to qualify for the benefits, however, a 

disabled miner or widow must engage in fairly complex, adversarial litigation and 

must prevail against large coal companies or insurance companies with experienced 

lawyers and significantly more financial resources.2 As revealed in the Pulitzer 

Prize winning articles by Chris Hamby and the Center for Public Integrity, this adversarial process is not only complex but has been significantly abused by some coal 

companies and their attorneys. 

THE BLACK LUNG CASE OF GARY FOX

In particular, the black lung case of Gary Fox that is featured in the first article 

by Chris Hamby is a tragic example of how the purpose of the Act was subverted 

by unscrupulous legal tactics. In short, 

• Mr. Fox was born in 1950. 

• After high school, he went into the Army and served in Vietnam. 

• He worked as a coal miner for 32 years from 1974 to 2006, and 

• Three years later, he died of complicated black lung at the age of 58. 

• He was married and had a daughter, but didn’t live long enough to see either 

one of his two grandchildren. 

But, if we take a closer look, there is an underlying story about how Mr. Fox tried 

to get out of the dust 7 years earlier by filing a claim for Federal black lung benefits 

and how his employer, Elk Run Coal Company (which is a division of A.T. Massey) 

defeated his claim by misleading its own experts and the Court: 

• In 1997, Mr. Fox filed a claim for State black lung benefits, and the West Virginia Occupational Pneumoconiosis Board issued a report to both Mr. Fox and to 

Elk Run that said he had x-ray findings ‘‘consistent with progressive massive fibrosis,’’ which is another term for complicated pneumoconiosis or complicated black 

lung. 

• Mr. Fox continued to work because he needed to support his family, but in 

1998, his physician became concerned about the possibility of lung cancer. A lobectomy was performed to remove a 5 cm mass from his right upper lung. The local 

pathologist who examined the tissue samples said it was not cancer and described 

the mass as a psuedotumor with ‘‘numerous anthracotic deposits.’’ 

• After recovering from the lung surgery, Mr. Fox went back to work in the mines 

but realized that he needed to get out of the dust before his breathing got worse. 

This time he filed a Federal black lung claim because the Federal program has an 

irrebuttable presumption of total disability when the miner has progressive massive 

fibrosis or complicated black lung. If the West Virginia Occupational Pneumoconiosis Board correctly found that he had ‘‘progressive massive fibrosis,’’ the Federal program would provide a modest monthly income to help support his family 

and also provide medical benefits for his declining pulmonary condition. His claim 

was initially approved by the DOL District Director, but Elk Run appealed to an 

administrative law judge. 

• Mr. Fox tried unsuccessfully to find a lawyer, so he appeared without representation. Elk Run, however, was represented by experienced attorneys from the law 

firm of Jackson Kelly who hired two expert pathologists to review the pathology 

slides from Mr. Fox’s lobectomy along with his work record, and additional radiographic readings. Both experts found that the pathology was consistent with complicated pneumoconiosis and not a pseudotumor. Moreover, one of the pathologists 

reviewed an x-ray taken after the lobectomy and noted that Mr. Fox had radiographic evidence of even more large opacities that were consistent with complicated 

pneumoconiosis. 

HELPN-003 with DISTILLER

30 

3See http://www.publicintegrity.org/2013/10/29/13585/coal-industrys-go-law-firm-withheldevidence-black-lung-expense-sick-miners. 4See Lawyer Disciplinary Bd. v. Smoot, 716 S.E.2d 491, 506 (W. Va. 2010). 

• Any lawyer familiar with Federal black lung claims would know that pathology 

is the ‘‘gold standard’’ for determining the presence of complicated pneumoconiosis 

and also would recognize that these two expert pathology reports supported Mr. 

Fox’s entitlement to benefits. However, despite being advised by its own expert pathologists that Mr. Fox had complicated coal workers’ pneumoconiosis and not a pseudotumor as the local pathologist had opined, Elk Run’s lawyers presented the 

local pathologist’s discredited report to its four reviewing pulmonologists and to the 

administrative law judge as though it was ‘‘all’’ of the pathology evidence. • Based on the skewed opinions of those four pulmonologists that Mr. Fox did not 

have pneumoconiosis plus a number of negative x-ray readings by Dr. Wheeler at 

Johns Hopkins, the judge had no basis for awarding benefits and denied Mr. Fox’s 

claim. • Without the black lung benefits, Mr. Fox continued working in order to support 

his family until 2006 when he was too short of breath to continue. He filed again 

for Federal black lung benefits and eventually prevailed. • During the course of Mr. Fox’s second claim, I was his lawyer, and Elk Run 

went to extraordinary lengths to hide its deception in the prior claim, but eventually, after exhausting all of its options, Elk Run finally had to disclose those two 

expert pathology reports that would have entitled Mr. Fox to benefits in his previous claim. • After Elk Run’s tactics were exposed, the judge who was misled in the prior 

claim aptly said, ‘‘That’s really misleading the Court. It’s misleading the witnesses. 

It’s tainting the witness testimony.’’ 3

• If Mr. Fox had been able to get out of the dust back in 1999, as the Act intended, he might have lived long enough to see his two grandchildren. 

OTHER EXAMPLES OF EMPLOYER MISCONDUCT

Unfortunately, Mr. Fox’s case is not an isolated example of deception by employers in Federal black lung claims. As Chris Hamby and the Center for Public Integrity disclosed, there have been numerous other examples: 

1. In the case of Elmer Daugherty (a miner for 42 years), the Jackson Kelly attorney representing his employer, Westmoreland Coal Company, submitted the ‘‘exam 

report of Dr. George Zaldivar’’ as if it were the entire report but had removed Dr. 

Zaldivar’s narrative finding of complicated pneumoconiosis. The West Virginia Supreme Court eventually determined that the lawyer’s conduct involved ‘‘dishonesty, 

fraud, deceit, or misrepresentation.’’ 4

2. The same tactic was used in the case of Charles Caldwell and presumably was 

used against other unsuspecting miners because Jackson Kelly argued vigorously 

that the practice was permissible. 

3. In the case of Clarence Carroll (a miner for 45 years), the Jackson Kelly attorney for Westmoreland Coal Company submitted the ‘‘report of Dr. Harold B. Spitz 

containing his interpretation of [a single] x-ray film’’ as if it were Dr. Spitz’s entire 

reading of that x-ray but did not disclose the fact that Dr. Spitz had read the same x-ray 21⁄2 years earlier as part of a serial reading of five x-rays taken over several 

years. Dr. Spitz’s single reading said the x-ray was consistent with a high profusion 

of simple pneumoconiosis and the coalescence of smaller opacities whereas his more 

probative serial reading was consistent with complicated pneumoconiosis. As in the 

Daugherty and Caldwell cases, Jackson Kelly presented a misleading portion of a 

physician’s opinion as though it was his entire opinion. 

4. In the case of Norman Eller (a miner for 39 years), Jackson Kelly was told by 

a leading expert that a set of chest CT images was incomplete and insufficient to 

exclude coal workers’ pneumoconiosis. Nevertheless, Jackson Kelly obtained and 

submitted two interpretations of the same incomplete CT images that were negative 

for coal workers’ pneumoconiosis. Like the Fox case, this intentional submission of 

unreliable evidence is misleading to the court. 

5. And, more recently, we also have learned about an x-ray service that will obtain radiographic readings for employers and retain the ones that would favor the 

claimant. 

Thus, there is ample evidence that the intentional skewing of so-called ‘‘medical’’ 

opinions by employers is fairly common and rarely discovered because the practice 

goes undetected whenever: 

1. The claimant is pro se and does not know how to pursue discovery, 

2. The claimant is represented by an attorney who does not pursue discovery, 

HELPN-003 with DISTILLER

31 

5See Keener v. Peerless Eagle Coal Co., 23 BLR 1–233, 1–243 (Jan. 26, 2007). 6 30 U.S.C. 923(b). 

7 Although the regulations set evidentiary limits to preclude unnecessarily repetitious evidence, an adjudicator can find ‘‘good cause’’ to exceed those limits in order to prevent the kind 

of deception described in the examples above. See 20 CFR § 725.456(b)(1). 

3. The claimant has an attorney who pursues discovery, but the claimant’s motion 

to compel discovery is denied by an ALJ, 5 or 4. The claimant has an attorney who pursues discovery; the ALJ grants a motion 

to compel discovery; but then, the employer withdraws its challenge to the claim 

and accepts liability in order to avoid discovery. 

Moreover, there is no practical remedy, particularly when an employer can avoid 

disclosure by simply agreeing to withdraw its challenge to entitlement and accept 

liability for a claim that the employer probably had no legitimate basis for contesting in the first place. 

DOL’S RESPONSE

To its credit, the Department of Labor has taken some positive steps in response 

to these deceitful tactics that have been undermining the purpose of the Act. One 

very important step is the recent announcement that the DOL will consider a new regulation requiring the disclosure of medical evidence ‘‘to ensure that miners have 

full access to information about their health and that accurate benefit determinations 

are made.’’ Requiring the disclosure of all interpretations of radiographs and pathology slides is critically important because: 

(1) It would provide a significant deterrent to fraud and deception, and 

(2) It would be consistent with Section 923 of the Act, which requires adjudicators 

to Consider ‘‘all relevant evidence’’ in determining the validity of claims. 6

In a program that is intended to protect miners, it makes no sense to withhold 

medical evidence that could have an adverse effect on their health, and I urge the 

committee to ensure that the Department implements this regulatory change as 

rapidly as possible.7

In the meantime, however, as explained in a letter to the Secretary of Labor from 

Chairman Casey and other Members of Congress back in February, it would be a 

real setback if the Department of Labor implements a more restrictive discovery 

rule that would require a showing ‘‘exceptional circumstances’’ and the inability to 

obtain similar evidence without implementing the rule requiring disclosure of medical evidence in Federal black lung claims first. Otherwise, the ‘‘exceptional circumstances’’ rule would apply to black lung cases, and coal companies or their attorneys could employ deceptive tactics to defeat the meritorious claims of miners like 

Mr. Fox with virtually no fear of detection. 

DR. WHEELER AND THE BLACK LUNG UNIT AT JOHNS HOPKINS

Another significant problem documented by Chris Hamby, the Center for Public 

Integrity, and ABC News was the availability of negative radiographic readings 

from the Black Lung Unit at Johns Hopkins and from Dr. Paul Wheeler in particular. Based on statistical evidence and Dr. Wheeler’s own statements, he was not 

properly following the official criteria for classifying radiographs. In more than 100 

cases decided since 2000, Dr. Wheeler’s negative readings were contradicted by undisputed biopsy or autopsy evidence of black lung. And one of those miners is Mr. 

Bailey who is testifying here today. 

To its credit, DOL has taken corrective measures to also address this problem. 

It has notified the District Directors that Dr. Wheeler’s radiographic readings are 

not entitled to probative weight unless the employer can provide additional evidence 

that would rehabilitate his interpretations. The Department also is notifying claimants whose claims contain negative radiographic readings by Dr. Wheeler that they 

may have a basis for refiling or requesting modification of a prior denial. I commend 

the Department for these actions. 

ADMINISTRATIVE DELAYS

Finally, I would like to emphasize that massive delays in the processing of claims, 

particularly at the ALJ level, are creating huge problems for claimants. We have 

been advised that the caseload at the ALJ level has nearly doubled since 2004 and 

the number of ALJs for both Longshore and Black Lung cases has dropped from 45 

to 36. As a result, the number of days it takes for an appealed case to be assigned 

to a judge has increased from 160 to 429. Put differently, the delay has gone from 

a little over 3 months to more than 14 months. And then, it still takes a number 

of months for a hearing date to be set and usually a year or more for the judge to 

HELPN-003 with DISTILLER

32 

8 It is my understanding that the lack of modern technology and a significant shortage of 

clerks as well as judges are contributing to the delays. 

issue a decision.8 In other words, there is a virtual log jam at the ALJ level, and 

because of the long delay, it is not unusual for the claim to outlive the miner or 

the widow. 

I cannot emphasize enough that these long delays are causing huge problems for 

claimants. If a miner or widow is denied benefits at the District Director level but 

has a valid claim, it will take years for the miner or widow to prevail with no benefits during the interim. Or, if a claimant is awarded benefits by the District Director, the miner or widow has to live with the uncertainty that those benefits could 

be overturned on appeal, which means that the miner or widow may have to repay 

all the benefits he or she received while the award was tied up in litigation. 

These long delays also make it much more difficult for claimants to obtain representation. It is completely unrealistic to expect that lawyers who only get paid if 

the claimant prevails will want to represent miners or widows if they also have to 

wait years to be paid an hourly rate for their time and will not be paid at all if 

the claimant does not prevail. 

Thank you for considering my remarks. 

Respectfully submitted by, 

JOHN CLINE. 

Senator CASEY. Thank you, Mr. Cline. 

Dr. Parker. 

STATEMENT OF JOHN E. (JACK) PARKER, M.D., PULMONARY 

SECTION CHIEF, WEST VIRGINIA UNIVERSITY DEPARTMENT 

OF MEDICINE, MORGANTOWN, WV 

Dr. PARKER. Thank you, Chairman Casey, Senator Isakson, and 

Senator Harkin, for the invitation. Of course, I’m here today because of the power of the pen, the power of the pen to shine a light 

on injustice. We could all be reminded that the Coal Mine Safety 

and Health Act challenged us to have the first priority and concern 

of all in the coal mining industry to be the health and safety of its 

most precious resource, the miner. 

As we’ve been hearing, unfortunately, black lung disease is not 

a disease of the past, and as a treating physician, I’ve cared for 

miners who have died at home, who have died in the hospital, who 

have died in the intensive care unit, who have died in hospice care, 

and who have died after lung transplantation has failed. I still 

grieve with their widows and their family members. 

I understand that concerns have been advanced about the accuracy of the medical work of physicians in matters of compensation 

for coal miners. More specifically, I’ve been asked to provide testimony on the medical standards that should be used when coal miners’ chest x-rays are classified. I have also been asked to give a 

range of fees that physicians may charge to read such chest x-rays. 

Let me provide a very short discussion about the diagnosis of 

dust related diseases. Workplace lung diseases are diagnosed during life with a history of exposure and an abnormal chest x-ray or 

lung function testing and no better medical explanation for the 

findings other than the workplace dust exposure. 

Because of the important role of chest x-rays in establishing such 

a diagnosis, the quality and accuracy of chest x-ray interpretation 

is, of course, central to the process and quite critical. We’ve heard 

that the ILO classification system is that system, and NIOSH has 

provided education and training and certification of physicians for 

many years and devoted substantial resources to the NIOSH B 

Reader program. 

HELPN-003 with DISTILLER

33 

They also have quality assurance programs that produce very 

highly validated and accurate readings and diagnosis and that, in 

fact, have served as the gold standard for research and education 

around the world. I’m quite confident that if compensation programs for miners introduce quality assurance programs similar to 

those that NIOSH uses, it would add a layer of quality, integrity, 

and oversight that would significantly reduce the inaccurate readings. 

Let me mention again that these diseases are preventable and 

that we’ve heard that regulation at 2 to 3 milligrams per cubic 

meter of ambient dust was in place for many years, and it’s now 

been reduced to 1.5 milligrams per cubic meter of ambient air. I 

would like to clarify my written testimony that I used liters instead 

of cubic meters, which is common for physicians to make an error. 

How much do B readings cost? Well, in my four-decade career, 

I’ve seen physician reimbursement for the ILO classification of images range from $2 a film to $100 a film. I’ve even heard of higher 

fees, but I would depend upon others to document that fee. Two 

dollars is what NIOSH paid readers in the 1980s and 1990s. The 

current NIOSH payment for digital radiographs is $12 an image. 

Chest x-rays that are interpreted in a hospital and clinical setting for clinical purposes are currently reimbursed at about $9 per 

image, so for clinical purposes, $9 per image. And chest CTs are 

reimbursed at a higher rate of about $60. 

Let me close by a short discussion about the professional integrity of physicians in compensation and litigation. I’ve been aware 

in my career of apparent systematic over-reading and under-reading in compensation matters. In the Judge Jack case in 2005, there 

was systematic over-reading of radiographs, and in a RICO claim 

of CSX Transportation v. Peirce in 2012, there was also over-reading. Chris Hamby and the Center for Public Integrity’s report has 

outlined substantial under-reading. 

NIOSH maintains a web page which is in full concert with the 

American Medical Association and the American College of Radiology. Realizing that the impartial objective and unbiased testimony has to be scientifically valid and capable to withstand peer 

review, that physicians have to be careful that their medical and 

legal and social implications from their readings are critical, I have 

no doubt that if all involved in the evaluation of miners for compensation utilize the principles embodied in these guidelines of professional societies that the Nation and its miners would be better 

served. 

Thank you for your attention. 

[The prepared statement of Dr. Parker follows:] 

PREPARED STATEMENT OF JOHN E. (JACK) PARKER, M.D. 

‘‘The first priority and concern of all in the coal or other mining industry 

must be the health and safety of its most precious resource—the miner.’’ 

(Federal Coal Mine Health and Safety Act of 1969, amended 1977.) 

Thank you for the invitation to provide testimony at this Employment and Workplace Safety Subcommittee hearing ‘‘Coal Miners’ Struggle for Justice: How Unethical Legal and Medical Practices Stack the Deck Against Black Lung Claimants.’’ 

I could not resist introducing the profound quote above as a preface to my remarks and comments. This meaningful quotation always reminds me of the noble 

mission and indeed the challenge that was issued over 45 years ago—to protect the 

miner from disease and injury. 

HELPN-003 with DISTILLER

34 

The questions. It is my understanding that concerns have arisen about the backlog of unresolved claims at the Department of Labor’s (DOL) Office of Administrative Law Judges (OALJ). I also understand concerns have been advanced about the 

veracity of medical work performed by physicians and ethical questions about the 

legal work provided by attorneys representing mining companies in these matters 

of compensation claims for coal miners. 

I have been more specifically asked to provide testimony focused on the consensus 

medical standards for reading or classifying chest radiographs of miners and the diagnosis or recognition of the presence or absence of pneumoconiosis. I have also 

been asked to explain common fee structures for evaluating such radiographs and 

to describe a typical range of reimbursement or fees charged by physicians. 

I am honored to be asked to render testimony on these questions and issues. 

My background. Let me briefly introduce the experience and training that I believe qualifies me to provide such testimony. I am currently a professor and chief 

of Pulmonary and Critical Care Medicine at West Virginia University Health 

Sciences Center. I am the program director of the Pulmonary and Critical Care Fellowship at West Virginia University. I am the director of the Adult Cystic Fibrosis 

Center. I have maintained an active clinical practice at West Virginia University 

since 1985, participating in the care of patients with pulmonary diseases, sleep disorders, and other life threatening illnesses in the intensive care unit. I have evaluated over 100,000 patients, research subjects, and/or their imaging studies, both nationally and internationally, for occupational lung diseases, including asbestosis, silicosis, coal workers’ pneumoconiosis, occupational asthma, hypersensitivity pneumonitis, or malignancies. 

From 1985 through 1998, I worked in a number of capacities for the National Institute for Occupational Safety and Health (‘‘NIOSH’’). I was the chief of the Examination Processing Branch at the Division of Respiratory Disease Studies for NIOSH 

from July 1991 through August 1998. In this position, I provided oversight for the 

NIOSH Coal Workers’ Respiratory Health Program as well as the NIOSH B Reader 

program and served as teaching faculty for the American College of Radiology Viewbox Seminar on Pneumoconiosis. Additionally, I was the co-author of NIOSH Hazard Alerts regarding toxicity of silica in sand blasters, rock drillers, and construction 

workers. 

I also developed a cooperative agreement with the Finnish Institute for Occupational Health for studying the health effects of asbestos on Russian asbestos miners 

and millers. Concurrently while serving as chief of the Examination Processing 

Branch, I was also the acting chief of the Clinical Investigations Branch and the 

acting chief of the Epidemiological Investigations Branch at the Division of Respiratory Disease Studies for NIOSH. I also served as the chief of the Protective 

Technology Branch of the Division of Safety Research for NIOSH. In this capacity, 

I supervised NIOSH research in workplace respiratory protection. 

I offered extensive expert testimony in the In re Silica MDL about the proper 

methods for conducting an ILO classification (B-reading) of chest radiographs; generating a differential diagnosis of chest radiographic abnormalities, and the implausibility of thousands of claimants having both asbestosis and silicosis. I also testified 

in June 2003 before the U.S. Senate Judiciary Committee while they were considering ‘‘Fair Act’’ legislation, which related to establishing uniform medical criteria 

for asbestos related disease compensation. 

I have consulted for both the World Health Organization and the International 

Labor Office (ILO) on many issues related to respiratory diseases. I have assisted 

the ILO in the 2000 and 2011 revision of the ILO system and on issues of quality 

assurance, training and the adoption of digital radiology, and the role of high resolution computed tomography. 

I’ve published numerous peer-reviewed studies, a textbook and textbook chapters 

on occupational lung disease. I was an invited participant at three Helsinki criteria 

meetings, which addressed asbestos, asbestos-related diseases, and imaging methodology. I also served as a B Reader for ATSDR in multiple studies of health effects 

from potential exposure to tremolite in Libby, MT and was a co-author of a peerreviewed published HRCT study of this cohort. I have made over 100 international 

trips to nearly 60 nations for research, teaching, training, or patient care, primarily 

related to occupational and infectious lung diseases. I have a passionate commitment to the recognition, prevention, and treatment of occupational lung diseases. 

The important role for imaging in dust related diseases has been of particular interest. I have also a strong interest in the ethical conduct of physicians as they have 

a sacred social contract with the Nation and its citizens to accurately present scientific truth in medical legal proceedings. 

HELPN-003 with DISTILLER

35 

Lung diseases in miners. Let me provide the following short background discussion about dust related lung diseases, with an emphasis on coalmine related dust 

diseases. 

The pneumoconiosis, silicosis, asbestosis, and coal workers’ pneumoconiosis are 

diseases related to the cumulative respiratory exposures to the respective dusts, and 

the lung tissue reaction to the dust. The diagnosis is made during life, typically 

without a lung biopsy, based primarily upon a history of exposure and latency, a 

compatible chest radiographic abnormality, and no better medical explanation for 

the findings than the dust exposure. These concepts are well described in medical 

textbooks and other medical literature. 

The major radiographic system to establish the presence or absence of abnormalities in dust exposed workers is the International Labour Office (ILO) classification 

system, and this is also used in the United States, and NIOSH devotes staff and 

resources to administering a B Reader program, for education, training, and certification of qualified chest radiographic interpreters, or physicians. 

Coal mine dust levels in coal mines have historically been regulated at about 2 

to 3 milligrams of respirable dust per liter of ambient air. Respirable dust is dust 

that is five microns or less in aerodynamic diameter. The permissible respirable 

dust level has more recently been reduced to 1.5 mg/liter by the Mine Safety and 

Health Administration. This is an effort to further protect miners from the adverse 

health effects of coalmine dust. 

These regulatory levels are in general agreement with enforced levels of exposure 

throughout the world. The science supporting this recommendation is well documented and is available for review in the publication—Criteria for a recommended 

standard: Occupational exposure to respirable coal mine dust (DHHS (NIOSH) Publication No. 1995–106). 

Coal miners are at risk to develop several lung diseases from their mining exposures to respirable dusts, such as bronchitis, expiratory airflow obstruction, and the 

radiographic abnormalities of coal workers’ pneumoconiosis. Recent advances in the 

understanding of respiratory health issues in coal miners have focused on the spectrum of disease caused by inhalation of coal mine dust, termed coal mine dust lung 

disease (CMDLD). 

This disease, CMDLD includes the classic occupational interstitial lung diseases 

such as coal workers pneumoconiosis (CWP), silicosis, and mixed dust pneumoconiosis, but also include the more recently described entity labeled dust-related diffuse fibrosis (DDF). Again, CMDLD is a preventable occupational disease that results from inhalation of coal mine dust into the lungs leading to parenchymal and 

airway damage, not only from the foreign material itself but also the tissue’s reaction to the dust. 

As most readers of this testimony will know, Congress passed comprehensive legislation with the Federal Coal Mine Health and Safety Act of 1969. This Act went 

above and beyond previous legislation by providing for the first mandatory standards for working conditions in U.S. mines, a system for enforcement, and ongoing 

monitoring of miner health, as well as a mechanism for seeking financial compensation for coal miners who could demonstrate total disability arising from their dust 

exposure (aka ‘‘black lung’’). 

Since the time of this landmark legislation further acts by Congress and enforcement agencies have improved miners’ working conditions, which now fall under the 

purview of the Mine Safety and Health Administration (MSHA). Much of our improved understanding of the nature and extent of lung disease associated with mining coal in the United States over the past half century comes from the large number of studies performed by the National Institute for Occupational Safety and 

Health (NIOSH). 

Despite increased understanding of CWP and previous reports of stable or improved dust levels in mines, dust-related respiratory disease remains a significant 

burden. Most worrisome are recent data suggesting that contemporary dust exposure is leading to rapidly progressive pneumoconiosis particularly in young miners, 

with a significant impact on pulmonary function and premature death. 

Medical diagnosis of lung diseases in miners. Establishing a medical diagnosis of ‘‘black lung disease’’ requires several elements, including but not limited to, 

a careful medical history and examination, an occupational exposure history, the use 

of lung function testing, and chest radiographic imaging studies, along with considerations of alternative causes of any and all abnormalities identified. 

For chest imaging, it is the ILO radiographic classification system that is the 

most widely accepted and standardized method to classify chest radiographs for the 

presence or absence of dust related radiographic lung injury. The system uses written guidelines, standard comparison films, and a recording or reading sheet. 

HELPN-003 with DISTILLER

36 

The system provides a method to record findings, after classifying chest 

radiographs for film quality, parenchymal abnormalities, pleural abnormalities, and 

additional observations to allow systematic categorizations and/or comparisons between readers, using a common measure or standard. The lung parenchyma is assigned profusion abnormalities in one of four major categories. Category 0 designates normal films, and categories 1, 2, and 3 record progressive degrees of profusion abnormality. Profusion is further expanded into a 12 point scale. Major category 0 includes designations 0/-, 0/0, and 0/1, while major category 1 includes 1/ 

0, 1/1, and 1/2; and so forth for major categories 2 (2/1, 2/2, 2/3) and major category 

3 (2/3, 3/3, 3/+). 

It is noteworthy that the ILO system, including refinements over time has been 

used for over five decades, and is a critical tool that has provided the scientific data 

for exposure-response relationships in occupational dust diseases. This data has allowed the United States and nations throughout the world to establish protective 

workplace standards. 

The ILO system has been consistently validated by workplace dust exposure histories, cumulative dust measurements, pathology, tissue mineral measurements, 

and additional radiological techniques such as high resolution computed tomography. When correctly applied without bias, the ILO system is a reliable tool 

to assess both groups and individuals for radiologic abnormalities from workplace 

exposures. 

With this background, allow me to address the specific concern about application 

of consensus medical standards for reading or classifying chest radiographs of miners and the diagnosis of the presence or absence of pneumoconiosis, and the common 

fee structures for evaluating such radiographs, and to describe a typical range of 

fees charged by physicians. 

The ILO system for classifying radiographs is the consensus standard medical 

method. Ideally, more than one reader should be used to reach consensus normal 

or abnormal. Science and experience has shown, multiple readers are more reliable 

than one reader alone with veto power. Typically, two readers with a third tiebreaker reader, or three readers by consensus have been the most widely used 

methods. NIOSH and other authorities have traditionally reached profusion consensus among three readers of the same PA radiograph based upon the median profusion classification. 

Profusion is a concept embracing severity of disease of the lung parenchyma by 

comparison to standard example images. Again, the numerical designations 0/0 and 

0/1 are normal or nearly normal, while designations with a number higher than 1 

as the first numeral are abnormal. Most research, surveillance and compensation 

systems use 1/0 or greater as abnormal (the scale progresses to include 12 values 

0/-, 0/0, 0/1, 1/0, 1/1, 1/2, 2/l, 2/2, 2/3, 3/2, 3/3, 

3/+). A median profusion consensus reading is the middle reading of the three classifications for profusion abnormality. For example, if the three reader classifications 

are 1/0, 1/1, 1/2, the consensus reading is 1/1; if classifications are 1/0, 1/1, 1/1, the 

consensus reading is 1/1; and so on. 

As previously stated, the ILO system is highly validated with research comparing 

radiographic findings to pathology, exposure assessment, lung tissue mineral analysis, and other techniques. 

Physician fees for radiographic readings. Information regarding fee structures. In my four decade career, I have seen the professional or physician reimbursement for the ILO classification of images, ranging from two dollars per 

radiograph to one hundred dollars per radiograph. Two dollars per radiograph was 

what NIOSH paid readers in the 1980s and early 1990s, in their research and surveillance programs. The U.S. Navy often reimbursed at about $6 to $8 per image 

for their asbestos related screening programs, during that time period. The current 

NIOSH payment for images in their coal miner surveillance program is $12 per 

radiograph. A chest radiograph professional interpretation in the hospital or clinic 

setting for clinical purposes is reimbursed at a lower rate than ILO classifications, 

and this is currently by most insurance companies about $9 per image. Chest computed tomography is reimbursed at a higher rate, about $60 per study. There is also 

technical component charge for radiographic imaging by hospitals or clinics, as they 

often own, operate, and maintain the radiographic equipment and supplies. For a 

single view chest that technical component reimbursement is about $12, and for 

Chest computed tomography it is about $150. 

Integrity in science and medical testimony. Now a short discussion about 

profession integrity of physicians, in compensation and litigation of occupational 

lung disorders. 

In my career, I have been aware examples of apparent systematic over-reading 

of radiographic abnormalities, as well as, systematic under-reading of radiographic 

HELPN-003 with DISTILLER

37 

abnormalities in dust exposed workers. Some of the apparent mis-application of the 

ILO system has led to concern about large scale fraud as outlined in the written 

decision from Judge Jack in the In re Silica MDL in 2005; and another Federal 

court decision, a Racketeer Influenced and Corrupt Organizations Act (RICO) claim 

in CSX Transp. Inc. v. Peirce, et al. in 2012. Other examples of potential mis-application of the ILO system have been outlined in the Center for Public Integrity reporting by Mr. Chris Hamby. 

As I have explained before, these reports of systematic un-reliable diagnosis, give 

credence to justified and serious concern about bias and the lack of scientific independence or credibility of some physicians in compensation and medical legal matters. Are some medical experts not being ‘‘scientifically credible’’; being ‘‘disingenuous and scientifically dishonest’’; presenting testimony that is ‘‘invalid and scientifically wrong’’; reporting incorrect medical decisions ‘‘not explainable as an ‘honest 

mistake’ or through lack of competence and skill’’; but rather reporting medical findings that are the product of a purposeful and systematic pattern of incorrect reading 

that does not match the scientific literature?’’ 

And again, rather than rely exclusively on my thoughts on this matter, I would 

refer readers to the NIOSH website that provides guidance to B Readers about the 

proper methodology for reviewing and classifying chest images, including ethics for 

contested readings. 

The website contains some of the following succinct and forceful language, and I 

primarily quote NIOSH in the following: 

‘‘NIOSH has prepared ethical guidelines that should be considered when readers classify radiographs in contested settings.’’ 

‘‘Also, the American Medical Association (AMA) and the American College of Radiology (ACR) have published guidelines for physicians serving as expert witnesses 

(ACR 2007, AMA H–265.994, AMA E–9.07).’’ 

‘‘All of these professional bodies and these guidelines discuss the need to be impartial, objective, and unbiased. Testimony must be scientifically valid and be able 

to withstand peer review.’’ 

‘‘The NIOSH B Reader Code of Ethics is intended to assist B Readers in recognizing and maintaining a high level of ethical conduct. The outcome of chest 

radiograph classification can have important medical, legal, and social implications. It is critical that B Readers perform chest radiograph classifications 

properly and with integrity. This code, modeled after those of the American Medical 

Association (AMA) and the American College of Radiology (ACR), is a framework to 

help B Readers achieve this goal.’’ 

B Reader Code of Ethics is as follows: 

‘‘The B Reader’s primary commitment is to serve the welfare and best interests 

of patients, workers, and society by striving to classify chest radiographs as accurately as possible. 

B Readers shall uphold the standards of professionalism, be honest and objective 

in all professional interactions, and strive to report individuals or enterprises that 

they know to be deficient in character or competence, or engaging in fraud or deception, to appropriate entities. 

B Readers shall recognize the limitations of chest radiograph classifications, and 

shall not make clinical diagnoses about pneumoconioses based on chest radiograph 

classification alone. 

When a contemporary chest radiograph is classified, the B Reader shall either 

take responsibility for assuring to the extent feasible that the examined individual 

is promptly notified of all clinically important findings or must be assured that another appropriate party is taking that responsibility. 

B Readers shall respect the law; the rights of patients, other health professionals, 

and clients; and shall safeguard medical information and other confidences within 

the constraints of the law. 

B Readers shall continue to study and apply advances or changes to the International Labour Office International Classification of Radiographs of 

Pneumoconioses as specified by the NIOSH B Reader Program. 

In providing expert medical testimony, B Readers shall ensure that the testimony 

provided is unbiased, medically and scientifically correct, and clinically accurate. 

B Readers shall recognize and disclose any conflicts of interest in the outcome of 

a chest radiograph classification. B Readers shall not accept compensation that is 

contingent upon the findings of their chest radiograph classifications or the outcome 

of compensation proceedings or litigation for which they undertake readings. 

B Readers shall not advertise or publicize themselves through any medium or 

forum of public communication in an untruthful, misleading, or deceptive manner. 

HELPN-003 with DISTILLER

38 

B Readers shall promptly report to the NIOSH B Reader Program any revocation 

or suspension of a medical license, voluntary relinquishment of a medical license or 

conversion to inactive status, or the voluntary surrender of a medical license while 

under investigation.’’ 

I have no doubt that if all involved in the evaluation of miners for potential adverse respiratory health consequences of mining utilized the principles embodied it 

these guidelines outlined by NIOSH and other professional organizations, the Nation and its miners, and its system of justice, would be better served. 

‘‘The first priority and concern of all in the coal or other mining industry 

must be the health and safety of its most precious resource—the miner.’’ 

(Federal Coal Mine Health and Safety Act of 1969, amended 1977.) 

PERTINENT REFERENCES

Criteria for a recommended standard: Occupational exposure to respirable coal mine 

dust (DHHS (NIOSH) Publication No. 1995–106). 

Guidelines for the Use of the ILO International Classification of Radiographs of 

Pneumoconioses. 

NIOSH. Chest radiography, NIOSH B Reader program, ILO Classification System, 

Issues in classification of chest radiographs, recommended practices: worker monitoring and surveillance, epidemiologic research, medical diagnosis, government 

programs, best technical practices. http://www.cdc.gov/niosh/topics/chest-radiography/interpretation.html. 

Petsonk EL, Rose C, Cohen R: Coal mine dust lung disease: New lessons from an 

old exposure. Am J Respir Crit Care Med 187(11):1178–85, 2013. 

Wagner OR, Attfield MD, Parker JE. Chest Radiography in Dust-Exposed Miners: 

Promise and Problems, Potential and Imperfections. Occupational Medicine: State 

of the Art Reviews 8(1); 127–141, 1993. 

Senator CASEY. Doctor, thank you very much for your testimony. 

Mr. Bailey. 

STATEMENT OF ROBERT BAILEY, JR., FORMER COAL MINE 

WORKER, PRINCETON, WV 

Mr. BAILEY. What is it like to have black lung? I thought I knew 

after spending so many years in the mines, but, really, I never 

knew until I got to this chapter of my life. Some days are a lot better than others. But every day is not a good day. 

When I signed up for black lung, I was initially denied, as stated 

in medical records from Johns Hopkins Hospital doctors in a negative way. My doctor, Dr. Rasmussen, said I had complicated pneumoconiosis. The board that he represents—I’ve done several records 

from them, and they’ve always supported that I had black lung. 

I felt within myself that this disease was here. I couldn’t settle 

for the other reading, so I proceeded, and they also added that 

there could be other diseases. That’s another burden they lay upon 

you, and you wonder what to do. I had a lung biopsy—took three 

samples, said two mostly black, that I had complicated black lung. 

Then after that event, I was awarded my black lung benefits. 

You get awarded, but it’s still not easy. It’s hard. You still have 

the disease. You struggle with the different things. And the other 

miners—which I’m fortunate. It took me almost 4 years. Other 

miners have been there a lot longer and they haven’t received anything, and a lot of it is through negative reading of the records. 

So I hope to support them with this, what we do today, for those 

that are still trying to get their benefits and for those who haven’t 

gotten to where we are now. I hope to prevent them from experiencing that. 

HELPN-003 with DISTILLER

39 

But the coverages, once you get them, you think that you’re covered. Social security gives me disability on pneumoconiosis and 

sleep apnea. But even now, I’m in the process of a lung transplant 

procedure. My black lung insurance provider does not want to approve evaluation procedures or a transplant, after being already 

approved twice through social security and the black lung program. 

So that’s another thing that we have to face, not just the daily 

struggles of our disease, but the outcome of all uncertainty of ourselves and the other miners that we represent. I’m still thankful 

that I am a UMWA member, and I feel like I have a comfort zone. 

Someone is there that will help back me and will stand behind us. 

And just like everyone is here today—we’re here for the same reason. So I look to you all to help us to get that which we need. 

For those that are not union workers, I feel a deeper compassion 

for them also, because they don’t have too many places they can 

go to for help, except maybe black lung clinics. They are limited, 

and they need more support from them. I would like to see Congress step in and make some changes to help process these claims 

that have taken so long for most miners to even receive. Unfortunately, most of them are turned down. 

I know that to have this black lung disease, some of it is simple, 

some of it is complicated, and the more complicated it is, the more 

help that you need, financially and emotionally. But it’s not just 

the miners. It’s their families. Our families suffer just as much, if 

not more, than the miner himself. So my heart goes out to the families also. 

I’d like to thank you, each and every one. I’m humbled to be 

here, and I’m honored. Thank you. 

[The prepared statement of Mr. Bailey follows:] 

PREPARED STATEMENT OF ROBERT BAILEY, JR. 

Chairman Casey, Ranking Member Isakson, and Senators, my name is Robert 

Bailey, Jr., and I am a retired and disabled union coal miner with complicated black 

lung disease. I graduated from high school in June 1972, and began working in the 

coal mines in July 1972. I retired after working in the coal mines for 361⁄2 years 

due to having black lung disease. 

I appreciate all the hard work that our elected officials have endured during these 

long struggles to get the changes that are needed. I also appreciate the support of 

the UMWA. 

If you would ask me, ‘‘What it is like living with black lung disease,’’ I would 

think, ‘‘Where do I start?’’ First of all, living with black lung is hard. With this disease, I have had to learn to change my normal way of doing things to a much more 

simple way or just not doing it at all. Living with black lung is thinking about every 

breath you take. Breathing is something most people take for granted as it is a normal involuntary function of our bodies. It comes natural as we walk, do our daily 

jobs, come and go. But with this disease, I am reminded constantly as I struggle 

to breathe whether I am simply walking up my slight incline of a yard, or grocery 

shopping or trying to participate in Operation Compassion at our church when we 

give out food. My wife says she can see the pain on my face as I struggle to take 

in enough oxygen to do those things in my life. There are days that I feel so bad 

that I end up doing mostly nothing all day. I feel like this disease has taken about 

80 percent to 90 percent of my active life away. I have always been an active, hardworking person who always had a hard time sitting still. 

With this disease, I end up with infections in my lungs and my breathing gets 

so bad that I have no choice but to go to the hospital. There, they pump me full 

of IV Antibiotics, steroids, nebulizers, etc. to build my system back up for a while. 

I am now having a once a month IV treatment at the hospital in hopes that it will 

help keep the infections down. I leave the hospital feeling better, strap on the oxygen tank, and thank God for another day to try again. 

HELPN-003 with DISTILLER

40 

When I originally filed for Black Lung Benefits in 2009, I had worked as an underground coal miner for more than three decades in very dusty conditions and had 

never smoked except for sneaking cigarettes for a few years as a teenager. I was 

denied because Dr. Wheeler gave a negative reading of my x-ray. In other words, 

he gave his opinion that I didn’t qualify for black lung or didn’t have severe black 

lung. I feel that Dr. Wheeler’s negative reading was given more weight simply because he graduated from Harvard University and worked at Johns Hopkins, than 

Dr. Rasmussen’s reading who is also a very accredited doctor in the Black Lung 

field with years of studying coal miners and their disease. 

I continued my claim and was finally, after nearly 4 years, awarded my Black 

Lung Benefits by a Federal Judge from Washington, DC, after much further testing, 

x-rays, MRIs, and a lung biopsy. They took three samples of my lungs and two of 

those samples were stated as ‘‘mostly black.’’ The final result of the lung biopsy was 

‘‘complicated Pneumoconiosis.’’ 

My lung doctor, Dr. Vasudevan of Princeton, WV, and I talked about the possibility of a lung transplant. His office started trying to find a hospital willing to see 

me to be evaluated for a transplant. We found Inova Fairfax Hospital in Falls 

Church, VA. The financial coordinator contacted Underwriters Insurance which I 

have through Patriot Coal as my insurance for anything related to black lung disease. Underwriters in turn approved a one-time evaluation. My one-time evaluation 

was scheduled for February 11, 2014. 

After this initial evaluation, it was determined by Dr. Steven Nathan that I needed a transplant and in his words ‘‘you are in the perfect window of opportunity for 

a transplant.’’ This would require a complete evaluation of testing which would have 

to be approved through the Underwriters Insurance. My next appointment was 

scheduled for May 27 for a followup (a regular checkup) with Dr. Nathan, but I received a letter of denial from Underwriters so this appointment was rescheduled for 

June 12. I started on the trip for this appointment without knowing if it would be 

approved. Finally, as I was halfway there, I received a phone call from Inova saying 

this visit was approved. When I got back home, I received a letter from Underwriters (from the attorney with Bowles Rice) stating that they authorized the June 

12 appointment but do not authorize any lung transplant procedure and that Patriot 

reserves the right to approve or disapprove any further testing or transplant in 

keeping with the ‘‘applicable regulations and law.’’ 

As I write this letter, I am here in Fairfax for the week for all of the additional 

evaluation testing required to determine my eligibility for a lung transplant. I have 

no idea if this week of testing will be approved and paid for nor do I know if after 

all this testing, the insurance will agree to the transplant since Patriot is reserving 

their right to approve or disapprove based on the ‘‘applicable regulations and law.’’ 

Today, as I write this letter, Underwriters has not sent me any letter of approval 

or denial concerning this week of testing. 

I worked in the coal mines for 361⁄2 years. Through the years, I have met a lot 

of good men who became like family. We were all there to make a living and none 

of us deserved this terrible disease, but sadly, there are a lot of us going through 

this. When I was working, I knew a lot of my co-workers who were afraid to have 

the free x-rays that the company was required to offer. They were afraid it would 

be used against them somehow, and they would lose their jobs. Even now, when a 

coal miner files for Black Lung Benefits, they know they are in for a battle. I just 

recently met a man who fought for 11 years and just recently won his benefits. He 

told me he was ready to give up several times but held on through much encouragement from people in the Black Lung Clinic. 

It seems like the coal companies and/or the insurance company wants to put you 

off as long as possible hoping you will give up or die before they have to pay any 

benefits. In my case, I have been awarded my Federal Black Lung Benefits and Disability Social Security benefits based on my black lung disease. Yet, Patriot Coal 

wants to reserve the right to approve or deny my testing or transplant. Patriot’s 

lawyers said they would need to review the medical records again (a stall tactic) and 

want to definitely determine the disease process present in the lungs. 

I feel like I need to prove over and over again that I have this terrible disease. 

I feel that the ‘‘applicable laws and regulations’’ mentioned in the letter need to be 

changed to protect the diseased coal miner more than the coal companies. I’m hoping you can help me and all other coal miners who have this amount of medical 

evidence and physical needs to be approved in a more timely manner and can stop 

the long drawn-out stalling techniques by using policies and criteria that help the 

insurance company and coal operators, but do nothing for the coal miners who are 

dying from black lung disease. There are coal miners who have died waiting on the 

approval for a transplant. Policies and laws need to be changed to give hope and 

life to those who don’t have time for stall tactics. Once a coal miner has been awardHELPN-003 with DISTILLER

41 

ed his Federal black lung benefits and no appeals were made in protest by the company, there should be no question about paying for anything concerning the coal 

miner’s health and quality of life. 

Senator CASEY. Mr. Bailey, thank you for your testimony and for 

your presence here today to bring your own story to this issue. 

We’re grateful. 

And, finally, Mr. Briscoe. 

STATEMENT OF ROBERT BRISCOE, WCP, PRINCIPAL AND 

SENIOR CONSULTANT, MILLIMAN, NEW YORK, NY 

Mr. BRISCOE. Mr. Chairman and members, if I could correct the 

record, my firm is not a law firm. It’s an actuarial firm. I’m here 

having spent almost 40 years measuring the things that are going 

on in the Federal black lung program. Primarily, what my staff 

and I do is calculate the dollar liabilities for these claims or pretty 

much every entity out there that ends up having to pay one. 

I think you’ve heard today a number of times several key words. 

One of them is latent and progressive. The other is complicated 

pneumoconiosis. That’s not the whole story. It is certainly regrettable, and my heart goes out to the coal miners who have serious 

lung disease. There is no question that I think the process should 

be and could be made better, certainly faster, to deal with those 

people. 

I would point out, though, that those people are a very small 

fraction of the total universe of claims that go by every day. We’re 

really talking about three diseases here. They are separate and distinct diseases. Complicated pneumoconiosis is, without question, latent and progressive. Simple pneumoconiosis, which is the majority 

of the cases that have ever been compensated for Federal black 

lung, is controversial, but there are strong arguments that it is neither latent nor progressive, and if it is, it’s to a very small degree, 

very few people. 

The other disease, which has not been mentioned yet today, is 

chronic obstructive pulmonary disease—all the other lung diseases, 

emphysema, asthma, bronchitis, that the general population experiences and the coal mine population experiences. The difference 

here—and it’s a very important difference—is that the prevalence 

of smoking in the eastern underground coal mine populations is 

four times higher than it is in the general population, which means 

that the prevalence of COPD is that much higher. 

What DOL has done in the latest 2001 regulations has been to 

try to apply to all black lung claims the latent and progressive 

issues that really are associated with complicated pneumoconiosis. 

And we are well on the way, as we sit here today, toward entitling 

claims where the claimant’s principal lung problem is COPD. Perhaps there’s a small fraction of black lung mixed in with that, and 

this is a very, very difficult medical-legal conundrum with respect 

to how these claims should proceed. 

I would point out—and I do work in pretty much all 50 State 

workers’ comp programs and have for many, many years—that the 

U.S. workers’ compensation is very rapidly moving toward evidence-based medicine. All the major workers’ comp States have 

medical treatment guidelines and disability rating guidelines that 

require evidence-based medicine to be applied. The concepts that 

HELPN-003 with DISTILLER

42 

are embedded in DOL’s preamble to the 2201 regs are pretty much 

in the opposite direction of that, and the program faces very great 

difficulties going forward trying to sort all of this out. 

I think that, without question, the miners who have very serious 

lung disease should be compensated, and they should be compensated rapidly. And I would point out that in my experience, the 

vast majority of claimants who have been diagnosed with complicated pneumoconiosis have had their claims paid, unfortunately, 

not as rapidly as perhaps they should be because of the litigation 

process, both administrative, the DOL, and the Office of ALJs. 

But the large body of claims that have always moved through the 

system—there’s been over 700,000 coal miners compensated for 

black lung since 1970. Since 1973, when the burden of paying for 

those claims was shifted to the coal mine operators, what is little 

understood, I think, is that these claims are very expensive. 

They’re at the high end of workers’ compensation claim cost. A 

married miner in his midfifties will eventually receive something 

on the order of half a million dollars. 

So because these claims are extremely expensive, that obviously 

generates litigation. What the Federal black lung program has not 

done, which the successful black lung programs operating in the 

major coal mine States did long ago, is to introduce a gradient of 

disability that pays more toward the very serious injuries, serious 

claims, and less toward the others and/or permits settlements of 

the claims, which DOL has adamantly refused to do over the history of the program. 

So I certainly would suggest that any and all things that can be 

done to speed up the adjudication process for those claimants with 

serious lung disease should be explored. But I think that we need 

to also focus on the bulk of the claims with lesser, if any, degree 

of disability arising from coal mine dust and try to make the program responsive to the full spectrum of the diseases that are arising out of coal mining. 

[The prepared statement of Mr. Briscoe follows:] 

PREPARED STATEMENT OF ROBERT BRISCOE, WCP, PRINCIPAL AND SENIOR

CONSULTANT, MILLIMAN INC. 

Thank you Mr. Chairman and members of the subcommittee for the opportunity 

to appear to share my thoughts on the Federal Back Lung program—a subject area 

I have been working on since 1973. My practice involves providing consulting services to organizations charged with paying Federal black lung claims. My clients 

have included insurance companies, Workers Compensation rating bureaus, self-insured coal companies, State funds and other State government agencies, and on several occasions, the agency charged with administering the program since 1973—the 

U.S. Department of Labor, Office of Workers Compensation Programs. My staff and 

I have processed and calculated the liabilities for the bulk of the claims that have 

been filed since the late 1970s and, in this regard, have reviewed many thousands 

of claims files in order to understand the factors upon which approval and denial 

decisions are based. 

As you think about the operation of the Federal program, there are three key 

facts I ask that you keep in mind, each of which I’ll discuss in greater detail below: 

• First, today’s approval/denial decisions are being driven by factors that, because 

of DOL’s poorly explained regulatory provisions, have little relationship to lung disease arising from coal mine employment. These implied principles are contained in 

the 2001 preamble to the regulations which were never subject to the notice and 

comment process of the Administrative Procedure Act and are now being applied as 

if part of the formal regulations. These principles extend to virtually every aspect 

HELPN-003 with DISTILLER

43 

of the claims adjudication process and frequently result in the payment of benefits 

to miners who do not suffer from Black Lung disease. • Second, while there has been a considerable amount of attention focused on 

what some perceive as bias by certain company/insurer physicians, in my experience 

the same biases, which are easily documented, exist among certain claimant physicians—this is not something new, but rather is endemic to the program, having 

been present since the earliest days of the program. • Third, the processes driving the approval rates of the program have been driven 

more by public policy considerations focused on circumstances of coal mining employment than by actual incidence of dust-induced lung disease among the active 

and retired miner population. 

HISTORY OF THE FEDERAL BLACK LUNG PROGRAM

The Federal black lung program was initiated in 1969 as Title IV of the Federal 

Coal Mine Health and Safety Act of 1969. It was designed to provide benefits to 

miners totally disabled due to progressive massive fibrosis, otherwise known as complicated Coal Workers Pneumoconiosis, associated with simple Coal Workers Pneumoconiosis arising out of coal mine employment and for survivors of miners whose 

deaths were a result of the disease. Coupled with a significant reduction in the permissible exposure to coal mine dust beginning in 1970, its sponsors assured their 

colleagues that it was to be: 

. . . a one-shot effort. This [program] is not a continuing arrangement to establish Federal based compensation for this or any other industry. We are only taking on those who are now afflicted with pneumoconiosis in its fourth stage— 

complicated pneumoconiosis. However, this is only one shot. I want to say this 

today and I want to have it placed on the record indelibly . . . (Remarks of Hon. 

John Dent, congressional Record, Oct. 27, 1969). 

The original Act created three presumptions to aid miners and their survivors in 

establishing claims. The bill finally enacted differed in one material respect from the 

one presented to the House and explained by Congressman Dent in that it removed 

the word complicated, thus providing compensation to claimants who exhibited 

symptoms at any stage of simple CWP in spite of the fact that only in its most serious form; i.e., complicated CWP or Progressive Massive Fibrosis (PMF), is it progressive, totally disabling and eventually fatal. The Surgeon General testified to this 

fact and stated ‘‘simple pneumoconiosis seldom produces significant ventilation impairment . . .’’ S. Rpt. No. 1254, 94th Congress, reprinted in the Legislative History 

of the Reform Act. 

In 1972, Congress greatly liberalized the medical criteria, added a new presumption of eligibility based on coal mining exposure of 15 years or more, extended eligibility for survivor benefits to survivors of miners who died from causes other than 

pneumoconiosis and made several additional changes in evidentiary and eligibility 

requirements. The new 15-year presumption was, and is, of particular concern to 

the coal industry in that no medical evidence has shown a clear causal relationship 

between duration of employment and the incidence of disability due to pneumoconiosis. Supporting this contention was testimony presented by the Surgeon General who stated, 

‘‘The occurrence of pneumoconiosis is spotty for work periods of less than 15 

years.’’ S. Rpt. No. 743, 92d Congress. Further, the National Academy of 

Sciences in testimony before the Senate Subcommittee on Labor stated, ‘‘At 

best, the evidence presented to Congress indicates that it takes 10 to 15 years 

of underground mining for coal miners even to begin to develop coal workers’ 

pneumoconiosis.’’ 

By 1977, the Social Security Administration, which had administered the program 

prior to July 2, 1973, had paid a cumulative total of nearly $5 billion in Black Lung 

benefits and there were over 490,000 beneficiaries on its rolls (this number eventually grew to approximately 600,000). In addition, the Department of Labor, which 

had begun administering the program on July 1, 1973 with less than half the personnel it had requested, had approved only an additional 4,000 claims with approximately 50,000 claims on file pending review. 

Against this background, Congress in 1977 amended the Act for a second time 

and again liberalized the eligibility criteria. Pneumoconiosis, which was previously 

defined as a chronic dust disease of the lung arising out of coal mine employment 

was broadened to include the, ‘‘sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.’’ ‘‘Miner’’ was broadened to include 

certain transportation and construction workers as well as employees of coal mining 

companies who were not engaged in coal mining activity and ‘‘total disability’’ was 

HELPN-003 with DISTILLER

44 

broadened enabling those still capable of work, or those still working, to receive benefits. The liberalization resulted in truck drivers, and other coal company employees 

who were never exposed to coal mine dust qualifying under the definition of 

‘‘miner.’’ Finally, a new 25-year presumption was added and the Labor Department 

was directed to re-examine all claims which had been denied prior to March 1, 1978, 

and adopted language to limit the government’s ability to re-read x-rays. This last 

point is of particular concern since the x-ray is regarded as the best evidentiary tool 

for diagnosing pneumoconiosis in a living miner. This change in the law required 

the Secretaries of HHS and DOL to accept a local reader’s x-ray diagnosis even 

though testimony presented before the Senate Committee on Labor stated that local 

doctors often mistook another lung disease for pneumoconiosis or completely overlooked the presence of a separate disease when interpreting x-rays. 

As the Part C program began to identify responsible coal mine operators to pay 

the costs of the program, DOL, through regulations promulgated in 1978, specified 

medical criteria to be applied upon which award decisions were rendered. Claims 

adjudications at the administrative level at DOL and in the Federal courts specifically addressed if the claimant had positive X-ray evidence of Coal Workers Pneumoconiosis (CWP) and if the miner had a loss of lung function within pulmonary 

function test ranges set by regulation to equate to total pulmonary disability. Tens 

of thousands of Federal Black Lung claims had been litigated at the administrative 

level at DOL and in the Federal courts by the late 1990s. Many claimants had neither positive X-ray evidence of CWP, nor a loss of lung function sufficient to qualify 

for benefits and were denied. Many claimants with a measurable loss of lung function were denied on the basis of medical opinions that such loss was the result of 

their long-term cigarette smoking, or other common respiratory conditions, as opposed to coal mine dust. The approval rate for both operator defended and DOL defended claims declined across the mid-to-late 1980s and 1990s and by 1995 was approximately 5 percent. Note that if denials of claims from individuals who were not 

long-term underground coal miners are removed from the approval rate calculation, 

the approval rate was higher—generally in the 10 percent range in the Eastern coal 

fields. A 10-percent rate, while higher, is in the general range of the actual incidence of all categories of CWP in the Eastern coal fields, indicating that the Federal 

Black Lung program’s operations had some, albeit significantly higher, relationship 

with the actual dust disease although much higher than the incidence of disabling 

CWP. The primary reasons for the reduction in the approval rate were: (1) the 1981 

amendments that repealed entitlement presumptions that existed in the program in 

its early days; and (2) findings that the primary reason for the loss of lung function 

was the claimant’s long-term cigarette smoking or other conditions not caused by 

coal mine dust exposures, including lung cancer and heart disease. 

In 1981 Congress, in the face of an exploding debt in the Black Lung Disability 

Trust Fund, amended the program again to tighten the eligibility criteria and provide for the award of benefits where disability decisions were based on medical criteria and not the number of years of underground employment. The 1981 amendments, which were supported by coal operators and the United Mine Workers of 

America, were intended to require disability or impairment as a precondition to 

compensation and to eliminate years of employment as a determinant for eligibility. 

The shortcomings of the program that gave rise to the 1981 amendments were highlighted in a report by the Comptroller General entitled ‘‘Legislation Allows Black 

Lung Benefits to be Awarded without Adequate Evidence of Disability’’ (HRD–80– 

81, July 28, 1980). According to this report, 88.5 percent of the claims reviewed by 

GAO, which had been approved by the Social Security Administration, did not contain adequate medical evidence to establish disability or death from CWP. A study 

conducted a year later by GAO showed that 84 percent of approved DOL claims 

were not supported by reliable evidence of coal mine dust-related disease or disability. The 1981 amendments succeeded in bringing financial stability to the program, but unfortunately, this was short-lived. 

In 1999 the DOL proposed new regulations, which, after extensive comments, 

hearings, and litigation, were promulgated as final on the last date of the Clinton 

administration. In the preamble to these regulations DOL stated that Coal Workers 

Pneumoconiosis is latent and progressive. In spite of the Justice Department’s concession before the DC Circuit Court of Appeals that CWP was not latent in its most 

common forms, and the Surgeon General’s report that simple pneumoconiosis was 

not progressive, it left only a very small number of ‘‘complicated’’ pneumoconiosis 

cases where latency or progressivity might be a factor. DOL has now reinvented the 

program since 2001 on the central concept that CWP is latent and progressive in 

essentially all cases and COPD in retired coal miners is related to previous exposures to coal mine dust. Thus, today on these premises, miners are allowed to file 

as many claims as they like no matter how many times their claims are denied, and 

HELPN-003 with DISTILLER

45 

the vast majority of awards are made on account of COPD due to smoking. There 

is no comparable State or Federal Workers Compensation program where nothing 

is final until an award of benefits is achieved, and where evidence justifying a differential diagnosis pointing to cigarette smoking alone is either ignored or deemed 

irrelevant. 

These central concepts are not well documented or supported by scientific research. Since Chronic Obstructive Pulmonary Disease (COPD) resulting in loss of 

lung function from past or ongoing smoking is central, or required, for most awards 

today, the Black Lung program is now operating to confer lifetime disability benefits 

to smokers who may or probably may not have even a low level of minimally disabling CWP. I cannot stress this point strongly enough—the vast majority of 

claimants receiving benefits today are receiving them not because of their 

coal mine employment but rather as a result of having been a smoker. What 

this means is that a miner leaving the workforce at the end of his coal mine career 

who has not developed a loss of lung function at that point in his life can, at a later 

age while continuing to smoke, file for Federal Black Lung benefits and support 

such claim with a showing of loss of lung function that developed in the intervening 

years. This is contrary to 40 years of specific medical studies of CWP that clearly 

show that CWP rarely, if at all, progresses once the exposure to coal mine dust has 

ended. DOL has correctly referenced observational clinical studies that indicate that 

some levels of COPD appear in some miners that may be related to their dust exposures, but then leaps to conclusions that all COPD must be caused by coal mine 

dust exposures. The medical studies fail to show evidence that severe COPD from 

coal dust exposure alone is a risk for coal mining populations. 

STATUS OF THE PROGRAM

Since its inception, well over 1 million coal miners and/or their dependents have 

filled one, two or more claims. Over 700,000 have received entitlements. The bulk 

of the benefits paid to date have been direct payments from U.S. General Revenues 

(Part B) or indirect payments from The Black Lung Disability Trust Fund, a mechanism created in 1978 to provide benefits to miners whose last employer was no 

longer in business. The Fund, while funded through an excise tax on coal sales, incurred substantial borrowings from the U.S. Treasury in the early years of its operation. By 1980 both the direct U.S. funded Part B program and the following Part 

C program had run approval rates in excess of 60 percent. The dominant reasons 

for denials of benefits were that the miner was still working in the mines, or that 

the claimant was not in fact a coal miner under the Act. Scant attention was paid 

to the medical evidence submitted with the claim, and expectations emerged early 

on that the program was a pension plan, intended to confer benefits to miners with 

more than 10 years of service with no regard to the presence of actual pulmonary 

disability. When realistic medical criteria began to be applied, the approval rate 

began to reduce both for operator defended and DOL defended claims. Claim denials 

predominated the process. 

The inevitable result of DOL’s emerging COPD focused approach to Black Lung 

compensation will be to increase the approval rate up to the level of the incidence 

of COPD in the coal mining population. If the coal mine population filing Back Lung 

claims had the normal national ratio of non-smokers to smokers, then basing the 

Federal Black Lung Program on compensation for COPD regardless of its source 

would produce a relatively small number of claim awards each year. The Eastern 

underground coal mining populations however have a much higher incidence of 

smoking than the general population—85 percent + vs 20 percent—25 percent in the 

general population. The medical literature suggests that 25 percent–30 percent of 

long-term smokers will develop COPD over their life. This gives rise to an expectation that an approval rate based primarily on loss of lung function from any cause 

should be in the 21 percent to 26 percent range. In fact the approval rate is at 23 

percent in one major Eastern coal mining State (Virginia) and is approaching the 

15 percent range in the other Eastern coal mining States. If the approval rate 

passes the 25 percent range, then increases over that level will indicate that the 

claims adjudication process is returning to the 1970s levels, where most miners 

worked all of their careers under far dustier conditions, representing compensation 

with minimum regard to the actual medical facts of each claim. It is also important 

to note that under DOL’s current approach to Federal Black Lung compensation xray evidence of CWP—the well defined disease the program was set up to compensate is almost completely ignored. The use of the ‘‘legal CWP’’ construct, which 

encompasses COPD, and the decision to reinstate the use of the presumptions based 

on years of employment, results in claims awards regardless of the x-ray evidence 

HELPN-003 with DISTILLER

46 

1 Claimants cannot get paid twice—Federal benefits are reduced dollar-for-dollar by State benefits on a monthly basis. 

presented in the case. Today, an award to a miner with any stage of simple pneumoconiosis diagnosed by x-ray or autopsy is very rare indeed. 

The Federal Black Lung program is, for many, viewed as a workers compensation 

program, most especially with respect to coal mine operations being required to obtain commercial insurance coverage as an add-on to their regular workers compensation polices. The operation of the program has been and continues to be very 

different from the 50 State workers compensation programs. This is most apparent 

in the lack of finality to the claim process. All 50 State workers compensation programs have statutes of limitations on the filing of claims—generally 3 to 5 years. 

Once a claim has been formally litigated and a decision rendered, appeals must be 

filed within short periods of time and all claims reach a final status as to the payment of benefits or a denial of benefits in, at most, a few years. The only statute 

of limitations applicable to Federal Black Lung claims—that the claimant must file 

the claim within 3 years of the date the claimant knew or should have known that 

he was totally disabled under the Act—has been undermined by DOL decisions and 

very rarely successfully invoked. A claimant leaving the workforce today, usually in 

his midfifties, may wait 10, 20, 30 or more years to file a first claim. If that claim 

is denied, he may re-file it as many times as he chooses to (some claimants have 

re-filed a dozen times or more). 

Successful Black Lung compensation programs have operated alongside 1 the Federal Black Lung program in the Eastern coal mining States. Generally, the compensation has been proportional to the extent to which the claimant has CWP and 

to the degree of loss of lung function. A key difference between the Federal and the 

State black lung programs is that in U.S. workers compensation, settlements of future claim liabilities are permitted, even encouraged, by Workers Compensation 

Judges in all but a few States. Thus, complex issues such as the interactions of 

COPD and CWP are worked out among the parties with a full and final resolution 

of the claim. Claim settlements have never been permitted with respect to the Federal Black Lung Program. Although settlements should be permissible, legally DOL 

has opposed all efforts to settle claims and demanded and received deference for the 

agency’s interpretation of the Act. DOL has argued in court that claimants and their 

attorneys cannot be trusted to bargain for a fair settlement, even though all settlements would require approval by an ALJ. 

While Federal Black lung claims pay lower monthly benefits than the monthly 

benefits paid for total disability under almost any State worker’s compensation act 

(and certainly those paid in the Eastern coal mining States), the Federal benefit is 

subject to a cost of living adjustment each year. The result is that a Federal Black 

Lung claim for a married miner in his midfifties will pay out over $500,000 making 

Federal Black Lung claim values equivalent to, or in excess of, permanent total 

workers compensation awards in the Eastern coal mining States. Claims from older 

miners or dependents are of course less, but still exceed $100,000 for even elderly 

married miners, and medical costs, which are not meaningfully cost-controlled by 

DOL, are skyrocketing. 

CONCLUSION

The course of the Federal Black Lung Program appears to be headed for a steep 

increase with respect to the number of claim awards, both from the miners who 

have recently exited the workforce, and from the tens of thousands of miners who 

exited the workforce over the last 10 years or more. This is not due to an increase 

in the incidence of disease, aside from some evidence of slight increases in x-ray evidence of pneumoconiosis in narrow Appalachian ‘‘hot spots.’’ CWP Disease diagnosed 

by Category 2o or higher x-rays is not driving the awards in any area of the country 

which would occur if the incidence of serious CWP was increasing. Rather, the current construct of the regulations governing the program and its administration denying any possibility of finality and any possibility of distinguishing dust disease 

from smoker’s disease are the reasons why claims are being awarded today at much 

higher levels than we have seen over the last 20 years. To continue the current progression will produce financial consequences not seen since the 1970s, and bring 

sharply into focus the fundamental unfairness of the compensation process for employers, insurers and, in fact, for many claimants who are coaxed into repeated filings and related litigation over decades. 

I would suggest that the ongoing focus be on: 

HELPN-003 with DISTILLER

47 

(1) addressing abuses, from all sides that have been part of this program since 

its inception, to ensure that those truly disabled from lung disease arising out of 

their coal mine employment are fairly compensated; 

(2) removing hurdles that preclude the expeditious disposition of claims; 

(3) bringing certainty and finality to the claims adjudication process to ensure the 

financial viability of the program into the future. 

Senator CASEY. Mr. Briscoe, thank you very much. I know we 

just had a vote that was called, so I’ll be brief in my first question 

or two, and then I want to turn to Senator Harkin so he can ask 

his question or two, whatever he has, and then be able to vote. 

Mr. Cline, I wanted to focus on the end of the recitation of the 

case of Mr. Fox. I want to make sure I heard you right. You talked 

about what happened to him, and I’m looking at your testimony 

where you say, 

‘‘If Mr. Fox had been able to get out of the dust back in 1999, 

as the act intended, he might have lived long enough to see his 

two grandchildren.’’ 

I want to make sure I understood the timeframe here. You’re 

saying that, in essence, he was in the mines, working for—I 

thought you said something on the order of 8 years that he would 

not have been working had there been a different determination 

made, a determination that flowed from the fraudulent pathology 

reports. Is there anything about that that I’m not stating accurately? 

Mr. CLINE. Yes, you have that correct, Senator. 

Senator CASEY. So just walk through again why he was in the 

mines for—you said for 8 years. 

Mr. CLINE. He filed his first claim in 1999 and was initially approved but lost on appeal. And because he didn’t have the modest 

benefits from the workers’ compensation program, he needed to 

continue to work to support his family. So he worked until 2006 

when he was just too short of breath to continue. He progressed 

during that time period from mild impairment to severe impairment and was in need of a lung transplant. He filed a second claim, 

and in the second claim, he prevailed, in 2008, 1 year before he 

died. 

Senator CASEY. In terms of what Congress can do or should do, 

in your judgment, what would you hope we would do if you had to 

itemize one or two actions you would hope we’d take? 

Mr. CLINE. The first would be to require the disclosure of at least 

all radiographic interpretations and pathology interpretations developed for the purpose of litigation just to protect the miner’s 

health and to deter misleading the judges. 

Senator CASEY. I may have more questions for you. I wanted to 

go to Mr. Bailey before turning to Senator Harkin. 

Mr. Bailey, thank you for the testimony. It’s very difficult, I 

think, for any witness to come before a panel in the U.S. Senate 

to talk about your own life and your own experiences. That’s particularly difficult. With no disrespect to other witnesses here or on 

other occasions, it’s easier to talk about something when it doesn’t 

involve your own individual experiences and that of your family. So 

we’re especially grateful for your willingness to talk about not just 

an issue or a public policy question, but really a question that involves your work, your life, and your family. 

HELPN-003 with DISTILLER

48 

You expressed in going through your testimony—as much as you 

focused on your own experiences and your own work situation, you 

talked as much about others as you did about yourself. And, in particular, you talked about those who don’t have the representation 

that you’ve had with the United Mine Workers. 

I’m assuming that you know other miners now, or have known 

them over the years, that did not have representation and were on 

their own. Could you talk about that or highlight some of those 

friends of yours or people you’re acquainted with? 

Mr. BAILEY. Thank you. A lot of the miners that don’t work at 

union mines—it’s like one on one. You’re there yourself. You’re 

alone. You’re sometimes lucky to even maintain your job, much less 

receive any benefits after that job is over due to illness and different reasons. So it makes it very hard for them to get what they 

need, because they don’t know where to go. 

Senator CASEY. I’ll turn to Senator Harkin, because I know we’re 

short on time. Thank you. 

The CHAIRMAN. Thank you, Mr. Chairman. 

Mr. Cline, when you take these cases, is there any compensation 

you receive, let’s say, at the first instance or maybe at the first filing or after the first appeal? Or do you have to wait until the absolute end before you get compensated? 

Mr. CLINE. You have to wait until the absolute end, until the 

claim is finally decided, and you only get paid if the claimant prevails. 

The CHAIRMAN. And that could be a couple of years or 3 years. 

Mr. CLINE. It’s more like four or five or longer, Senator. 

The CHAIRMAN. I’m very familiar with that—and I’m sure you 

are, Mr. Chairman—the social security claimants’ representatives, 

NOSSCR, the National Organization of Social Security Claimants’ 

Representatives, where the lawyers take up social security disability claims that have been denied, and then they go through the 

appeal process. 

But it seems to me that there has to be some way of, in the first 

instance, helping attorneys be able to represent them and to be 

compensated somewhat along the track. Otherwise, how are attorneys going to pick up the cases? 

Mr. CLINE. The legislation you’ve been working on with Senator 

Rockefeller and Senator Casey is a step in the right direction. Then 

if the claimant prevails at the administrative law judge level, they 

might get some payment without waiting until the case is finally—— 

The CHAIRMAN. Exactly. That’s in our legislation, and we hope 

to have it introduced, I hope, Mr. Chairman. But I wanted to make 

that point clear. That’s why you don’t get many attorneys taking 

this up. I mean, they have families to feed. They’ve got things 

they’ve got to do. 

Mr. CLINE. Absolutely. 

The CHAIRMAN. So they can’t continue to just hope that 4 or 5 

years from now they’re going to get paid. 

Mr. CLINE. It’s a ridiculous expectation. I wanted to add, if I 

could, just one thing. Mr. Bailey and Gary Fox both had simple 

pneumoconiosis before they had complicated pneumoconiosis. If 

simple couldn’t progress, they wouldn’t get complicated. 

HELPN-003 with DISTILLER

49 

The CHAIRMAN. Dr. Parker, let me just ask you—is black lung 

disease a progressive illness? 

Dr. PARKER. Yes, sir. Absolutely, yes, sir. It can progress after 

coal mine dust exposure ceases, and it can be certainly progressive 

while coal mine dust continues to accumulate in workers’ lungs. 

The CHAIRMAN. I thought I heard from Mr. Briscoe, or at least 

in his written testimony, in which he said that once you’re out of 

the mines, it doesn’t progress anymore. He said, ‘‘This is contrary 

to 40 years of specific medical studies of CWP that clearly show 

that CWP rarely, if at all, progresses once the exposure to coal 

mine dust has ended.’’ 

Mr. Briscoe, is that so? Are there 40 years of evidence? 

Mr. BRISCOE. Yes, sir, there are. That is the predominant medical literature. We’re not saying it never progresses. It certainly can 

in isolated cases. The question is one of degree. Does simple pneumoconiosis progress in every case? We don’t believe so. 

The CHAIRMAN. I’m just a layman at this, but I watched what 

happened to my own father. When he was younger, we all assumed 

he had black lung, but that was before people called it that. But 

all those people who worked in mines, as they progressively got 

older and their systems became less immune to illnesses and stuff, 

they became more and more inundated with things like pneumonia, 

lung problems, things like that. 

In other words, when you’re young, perhaps the effect of simple 

black lung or pneumoconiosis—I can hardly pronounce it—is not 

that pronounced. But as you age, it becomes more pronounced on 

you. That’s why I keep telling people that don’t think about black 

lung as something that totally disables a person—what about 

someone like Mr. Bailey that can’t even play with his grand kids, 

can’t even go for a walk? I mean, it’s that kind of a situation that 

really takes away your enjoyment of life in your sixties and seventies. 

Mr. BRISCOE. Senator, we’re really talking about two separate 

issues here. The medical literature indicates that simple coal workers’ pneumoconiosis—let’s say somebody leaves the mines with category one simple pneumoconiosis. It is very rare for that claimant 

to develop category two or three. The x-rays don’t progress. 

Lung function does decline with age. It can also decline with 

smoking. It can decline for lots of other reasons. The issue is causality here. Does coal mine dust exposure causing a category one 

black lung situation—is that going to progress to category two or 

three down the road? The answer is there’s no basis in the literature for that. 

The CHAIRMAN. Dr. Parker. 

Mr. BRISCOE. Will the lung function decrease? Yes. 

The CHAIRMAN. Dr. Parker. 

Dr. PARKER. NIOSH has a coal mine dust criteria document that 

was published a number of years ago, and it’s the basis of MSHA 

changing some of the recent rulemaking. And it, along with substantial medical literature, makes it very clear that lung function 

and radiographic change can progress after dust exposure ceases. 

The CHAIRMAN. Mr. Bailey, thank you for being here, and thank 

you for fighting the good fight and not giving up. You’re a strong 

HELPN-003 with DISTILLER

50 

person and don’t give up. Keep fighting, and I hope you get that 

lung transplant. 

Mr. BAILEY. Thank you, and I’d like to add that I’m also a nonsmoker. 

The CHAIRMAN. I read that in your testimony. You haven’t 

smoked since you were a teenager or something like that? 

Mr. BAILEY. Yes. I used to sneak around at 13 or 16, when I 

could. 

[Laughter.] 

The CHAIRMAN. Exactly. 

Mr. BAILEY. I learned better. 

The CHAIRMAN. Thank you, Mr. Bailey. 

Thank you, Mr. Chairman. 

Senator CASEY. Mr. Chairman, thank you, and we’re grateful 

that you’re here with us and grateful that you have been in the 

trenches on these issues for many, many years. 

I know we have to vote, but before we wrap up—and I have a 

number of questions for the record that I’ll submit. 

Mr. Bailey, you submitted a picture to us of you. I guess this is 

you over here, second from the right on the back. I won’t ask you 

to identify everybody. 

Mr. BAILEY. The good-looking one. 

[Laughter.] 

Senator CASEY. Well, let me wrap up. I know that we have lots 

more we could cover. But let me wrap up. First, we’ll have a period 

within which other Senators can submit questions for the record. 

And as Chairman Harkin noted, we’re working with Senators 

Rockefeller, Harkin, and Manchin, and Representative George Miller to continue working with the Department and NIOSH to make 

sure we’re doing everything we can to level the playing field for 

hardworking miners who have had the misfortune of developing 

black lung disease and now face the uphill battle, the struggle for 

benefits. 

For all witnesses, please know that members may want to submit additional questions for your written responses, as I mentioned. 

And for members who want to submit statements for the record 

or questions, the hearing record will be open for 7 days. And with 

that, unfortunately, because of time, the hearing is adjourned. 

Thank you very much. 

[Additional material follows.] 

HELPN-003 with DISTILLER

51 

ADDITIONAL MATERIAL 

PREPARED STATEMENT OF SENATOR ROCKEFELLER

Senator Casey, thank you for holding this very important hearing today to discuss pneumoconiosis, commonly referred to as 

‘‘Black Lung’’ disease. There are few Members of Congress who 

match your commitment to protecting the health and safety of our 

Nation’s coal miners, particularly as it relates to this debilitating 

and deadly disease. 

Today’s hearing provides an important opportunity to both educate our fellow Senators about how this terrible disease impacts 

coal miners and their families, and impress upon our colleagues 

our shared obligation to make sure that coal miners who are suffering get the benefits they deserve under the Federal Black Lung 

Benefits Program. 

I look forward to hearing from our distinguished panel of government officials who will testify about our Federal Black Lung program and how we can improve it: Deputy Secretary of Labor, 

Christopher Lu, who oversees many Federal programs that are important to our coal miners; Solicitor of Labor, Patricia Smith, who 

defends our health and safety laws against a seemingly endless 

barrage of attack from companies who would rather do the bare 

minimum when it comes to protecting their employees from injury 

and illness; and Director of the National Institute for Occupational 

Safety and Health, Dr. John Howard, whose agency monitors the 

prevalence of Black Lung disease and whose work has proved invaluable to our understanding of how we can protect miners from 

developing this disease in the first place. 

We are also extremely fortunate to have three West Virginians 

testify today, each of whom is on the front lines of the battle to 

make sure that coal miners suffering from Black Lung disease are 

provided the benefits and treatment they so badly need and deserve: John Cline, an attorney who has devoted his career to litigating cases on behalf of coal miners and widows suffering from 

this dreadful disease; Dr. Jack Parker, Pulmonary Section Chief 

from the West Virginia University Department of Medicine and a 

recognized expert on Black Lung disease; and Robert Bailey, a 

former coal miner who knows first-hand what it is like to struggle 

each and every day with Black Lung disease and the unfair burden 

our laws and litigation system place on miners who are simply trying to access their Federal benefits. 

Since first coming to West Virginia 50 years ago, to the small 

mining community of Emmons, I have spent countless hours talking with miners and their families about the toll this devastating 

and deadly disease takes on men and women who have worked 

their entire careers mining coal. They tell me that everyday activities most people take for granted—walking from one room of the 

house to another, mowing the lawn, hunting and fishing, playing 

with their grandchildren—become all-but-impossible. These once 

vibrant, strong, independent men and women find themselves confined to a chair in the living room, hooked up to an oxygen tank 

nearly 24 hours a day just so they can continue breathing. 

Listening to their stories reaffirms in me the simple yet extremely important principle that coal miners—who work long hours 

HELPN-003 with DISTILLER

52 

to support their families—should not have to live in fear that 1 day 

they will develop a respiratory disease that will prevent them from 

experiencing the simple joys in life. 

One of the most troubling aspects of the public debate over Black 

Lung disease is that many people believe it is a thing of the past— 

that somehow coal miners are no longer at-risk of developing the 

disease. The sad reality, however, is that the disease is very real 

and on the rise in coal mining communities throughout the country. 

In the 1970s, shortly after Congress passed major legislation to 

combat Black Lung disease, 6.5 percent of all active coal miners 

had the disease. By the 1990s, that number had dropped to 2.1 percent. But, in the 2000s, we saw the prevalence of Black Lung disease increase to 3.2 percent—the first increase of the disease in 

three decades. Between 1999 and 2009, almost every single region 

in the country saw an increase in the percent of miners suffering 

from Black Lung disease. Some areas in West Virginia, Pennsylvania, Virginia, and Kentucky are seeing rates as high as 9.0, 10.0, 

and even 13.2 percent. 

Sadly, research is also showing that younger miners are now developing more progressive forms of the disease earlier in their careers. These findings were confirmed as part of the investigation 

into the Upper Big Branch disaster, which took the lives of 29 coal 

miners in West Virginia. Autopsies of 24 victims revealed that 17 

of them, or 71 percent, suffered from Black Lung disease. Even 

more alarming is that five of those victims with Black Lung disease 

had been working for less than 10 years underground, including 

one miner who was only 25 years old. So, while the explosion that 

took their lives did so almost instantaneously, another disaster, 

hidden from view, was taking their lives more slowly—but just as 

tragically. 

This rise in Black Lung disease is unacceptable. Congress and 

the Administration have a solemn obligation to provide coal miners 

with every protection from this debilitating, incurable, but preventable disease. That is why I was proud to join Secretary of Labor 

Thomas Perez in West Virginia in April to announce the finalization of new rules that—for the first time in 40 years—will lower 

coal miners’ exposure to the respirable dust that causes Black Lung 

disease. The Administration should be commended for taking this 

major step forward. With strong enforcement and implementation, 

these rules will undoubtedly save lives and improve the quality of 

life for current and future generations of coal miners. 

While the primary purpose of that rule is to prevent Black Lung 

disease, today’s hearing rightly focuses on the equally important 

goal of providing assistance to miners who already suffer from this 

dreadful disease. Sadly, as we will learn from today’s testimony, accessing Federal Black Lung benefits remains an uphill battle for 

coal miners and their families. 

Congress has long known that coal miners with Black Lung disease are at a tremendous disadvantage when attempting to access 

Federal benefits. Several years ago, I asked the Government Accountability Office to conduct a comprehensive review of the Federal Black Lung Benefits Program and to identify barriers that 

miners, as well as their survivors and dependants, face when apHELPN-003 with DISTILLER

53 

plying for benefits. That report, released in 2009, concluded that 

‘‘there are a number of administrative and structural problems that 

could impede the ability of eligible miners to pursue claims.’’ 

Among the challenges identified in that report were a difficulty 

finding legal representation and developing sound medical evidence, as well as a lack of financial resources to cover the costs associated with supporting their claims. 

The findings of that report are extremely troubling—but last 

year we learned from a Center for Public Integrity and ABC News 

investigation that the problems in our Federal Black Lung Benefits 

Program are much worse than many of us had imagined. That investigation confirmed not only that miners have fewer legal, financial, and medical resources, it also documented numerous cases in 

which coal operators and their attorneys intentionally withheld evidence of the existence of Black Lung disease from miners, widows, 

and even judges. At least one company-hired doctor profiled in that 

investigation had never diagnosed a miner with complicated pneumoconiosis in more than 1,500 cases since 2000. 

In other words, under our current system, miners with little or 

no financial resources are forced to litigate their claims against 

deep-pocketed coal operators, some of whom—with help from corporate lawyers and hired doctors—are all-too-willing to engage in 

unethical practices to evade responsibility for paying monthly benefits and health care expenses for miners suffering from Black Lung 

disease. These reports and investigations make absolutely clear 

that our system is broken and must be reformed. 

To make matters worse, these cases can literally drag on for 

years, depriving coal miners of the certainty that should come with 

qualifying for Federal Black Lung benefits. Some of these delays 

result from seemingly endless appeals and may require structural 

reforms to the program, but Congress can also help by providing 

funding to hire additional administrative law judges to decide these 

cases in a timely manner. Right now, it takes 429 days for a Black 

Lung case just to be assigned to an administrative law judge. That 

is way too long. 

To be clear, the Democratic majority in Congress, along with 

President Obama, has taken action in recent years to improve our 

Black Lung system. As part of the Affordable Care Act, we passed 

one of the most significant protections for victims of Black Lung 

disease in decades. That law restores a presumption that long-term 

miners with disabling respiratory impairments are entitled to 

Black Lung benefits, and also automatically entitles widows to 

Black Lung benefits if their spouses were receiving benefits at the 

time they passed away. 

The Department of Labor has also been working to restore fairness to our Black Lung system by establishing a new pilot program 

to help miners develop additional medical evidence to support their 

claims; partnering with the National Institute for Occupational 

Safety and Health to train its staff on medical and scientific issues 

associated with Black Lung claims; instructing its staff to disregard 

medical reports from at least one doctor whose diagnoses have 

proven to be unreliable; and, notifying claimants of their right to 

reopen their cases if that doctor’s testimony resulted in the denial 

of their benefits. 

HELPN-003 with DISTILLER

54 

The Department has also announced that it will be working on 

a new rule to address issues surrounding the disclosure of medical 

evidence in Black Lung cases. This is an issue I raised with Secretary Perez earlier this year, and I am continuing to urge the Department to do everything in its power to prevent coal operators 

and their attorneys from misleading our courts and withholding 

critical medical evidence from miners and their families. 

I appreciate the Department’s willingness to take steps to make 

sure that miners can access the Federal benefits they deserve, but 

I also believe that Congress itself has an obligation to look at our 

laws and make corrections when injustices arise. 

Senator Casey and I have a bill, The Black Lung Health Improvements Act, which addresses some of the systematic problems we 

have seen in our Black Lung system. Our legislation expands miners’ access to medical evidence; creates a program to help miners 

secure legal representation when applying for benefits; and, makes 

grant funding available for research into the disease. He and I are 

now working together with Senator Harkin, Senator Manchin, and 

Congressman George Miller to revise and update that bill to address some of the newer issues that were raised in the Center for 

Public Integrity and ABC News investigation. 

I am confident today’s hearing will provide invaluable information that will help us craft a bill that restores fairness to our Black 

Lung system and provides miners, their spouses, and dependants 

with the support they need and deserve. 

PREPARED STATEMENT OF SENATOR MANCHIN

First, I would like to thank Senator Casey for holding this hearing. Black lung and our miners who suffer its devastating effects 

do not get the attention they deserve. We need to work together to 

do everything in our power to end black lung and I appreciate the 

committee recognizing this need. 

I would also like to thank all of the witnesses, including those 

from West Virginia. Specifically, I appreciate Mr. Bailey taking the 

time to share his experiences. 

I am proud to come from West Virginia, where we produce the 

coal that has powered this Nation for more than a century. Our 

miners have mined the coal that keeps our lights on, heats our 

homes and powers our businesses and it is unacceptable that they 

still face the threat of black lung disease. 

As Governor and as a U.S. Senator, the health and safety of our 

miners has always been and will continue to be my top priority. 

During my time in the Senate, I am proud to have worked with 

Senator Rockefeller, as well as Senators Casey and Harkin, to ensure that our miners have every available opportunity to access 

black lung benefits. As we saw with the ABC News and Center for 

Public Integrity reports last year, too often our miners face insurmountable obstacles to access benefits they have undeniably 

earned. Since those reports, our offices have worked to address concerns with the Department of Labor’s proposal to change evidentiary standards in black lung cases that could unfairly burden 

miners, and we have come together to voice opposition to cuts in 

funding to the Office of Administrative Law Judges. Our offices, 

HELPN-003 with DISTILLER

55 

along with Congressman George Miller, continue to work on legislation to more fully address the issues raised in the CPI and ABC 

News Reports. 

I am also proud to have worked with Senator Rockefeller and 

Congressman Rahall to fight for adequate Federal funding for West 

Virginia’s Black Lung Clinics. West Virginia is home to more black 

lung clinics than any other State. These clinics provide not only 

medical care, but benefits counseling as well, something we have 

seen is sorely lacking. In fact, Mr. Bailey’s testimony mentions the 

clinics’ role in helping one of his colleagues. 

I ask that the Administration continue to work with our offices 

to ensure that all miners have access to adequate medical care and 

legal counseling, and to ensure that unfair practices do not delay 

or deny a miner their benefits. 

CONGRESS OF THE UNITED STATES, 

WASHINGTON, DC 20510, 

February 18, 2014. 

PRESIDENT BARACK OBAMA, 

The White House, 

1600 Pennsylvania Avenue NW, 

Washington, DC 20500. 

DEAR MR. PRESIDENT: We are writing to highlight the need for action to address 

budget and staffing cuts in the Department of Labor’s (DOL) Office of Administrative Law Judges (OALJ), which is resulting in untenable delays in adjudicating 

claims, such as claims under the Black Lung Benefits Act and alleged violations of 

employment law. These delays directly and severely impact the lives of workers 

throughout the country, placing an undue financial and emotional burden on the affected individuals and their families. 

In an April 16, 2013 memo from Chief Judge Stephen Purcell to then-Acting Secretary Seth Harris, Judge Purcell expressed concerns that the OALJ is rapidly nearing the point where the ever-growing backlog of cases will become unmanageable 

due to the lingering effects of sequestration and furloughs, increased resource requests from other DOL agencies, and inadequate staffing support of judges. The 

memo also details an inability to replace judges who have or will soon retire with 

qualified judges with substantial litigation experience due to the lack of funding and 

relocation expense when qualified judges can’t be found locally. 

Hearings concerning Black Lung benefits and Longshore Workers’ compensation 

constitute the largest part of the office’s work, in addition to the growing number 

of Permanent Labor Certification (PERM) Immigration cases. The Department’s administrative law judges also hear and decide cases arising from over 80 labor-related statutes and regulations, including whistleblower complaints involving corporate fraud, nuclear, environmental, pipeline safety, aviation, commercial trucking, 

railways, and other statutes; minimum wage disputes; enforcement actions involving the working conditions of migrant farm laborers; disputes involving child labor 

violations; and civil fraud in Federal programs. 

OALJ is being overwhelmed with cases as their staffing level decreases. The number of judges nationwide is down to 35, from 41 earlier this year and 45 a decade 

ago. For fiscal year 2013 there were a total of 11,325 total cases pending, almost 

doubled from a decade ago. The costs and delays in filling vacancies, the inability 

to assign new cases to departing judges and the inherent learning curve for new 

judges further reduces the Agency’s ability to efficiently and effectively adjudicate 

cases. Meanwhile, new and pending cases are up 68 percent and 134 percent, respectively, since 2009, as the attached chart illustrates. These staffing difficulties 

and increased workload lead directly to longer delays in adjudicating cases. 

Black Lung claimants, for example, are waiting an average of 429 days for their 

cases to be assigned to an administrative law judge and an additional 90–120 days 

after assignment before their cases go to court. That’s over 520 days for claimants, 

many too disabled to work, just to start making the case that they deserve benefits. 

Miners who were not awarded benefits during their initial filings before DOL district directors face a specific burden from these delays. They cannot begin receiving 

these badly needed benefits that are necessary to continue supporting their families 

HELPN-003 with DISTILLER

56 

until their cases are finally adjudicated. Justice delayed is justice denied for those 

coal miners suffering the debilitating effects of Black Lung. 

The fiscal year 2014 request level of $26.7 million will not reduce the growing 

backlog, nor will it meet the need for the projected increase in casework driven by 

new statutes and more cases generated by other DOL agencies. We fully support 

increases in funding for enforcement of our labor laws, but believe that these increases should be met with corresponding increases for administrative law judges 

to hold hearings and issue opinions in a timely manner. Unfortunately, the current 

funding level precipitates even longer delays in the adjudication of claims going forward. 

We encourage the White House to make the elimination of this unsustainable backlog of cases a priority in the fiscal year 2015 budget. Each day a case is delayed 

adds to the hardship for the affected individuals, who simply want the timely justice 

they so rightly deserve. 

Sincerely, 

SENATOR ROBERT P. CASEY, JR., 

SENATOR JOHN D. ROCKEFELLER IV, 

SENATOR JOE MANCHIN, 

REPRESENTATIVE GEORGE MILLER, 

REPRESENTATIVE BOBBY SCOTT, 

REPRESENTATIVE JOE COURTNEY. 

ALJ Law Clerk levels change during a fiscal year. The numbers noted above are 

derived from staffing levels at or near the beginning of each fiscal year. 

HELPN-003 with DISTILLER


24452-1.eps
57 

LENAHAN & DEMPSEY, 

SCRANTON, PA 18501–0234, 

July 15, 2014. 

Hon. ROBERT CASEY, JR., 

607 Hart Senate Office Bldg., 

Washington, DC 20510. 

DEAR SENATOR CASEY: I am writing today to provide you a summary of the long 

and tortured history of Patricia Padagomas’ pursuit of Federal Black Lung Benefits. 

Please note that when I spoke to Mrs. Padagomas, she broke down crying. She faces 

HELPN-003 with DISTILLER


24452-2.eps 24452-3.eps
58 

the imminent loss of her home; she cannot afford to travel to Washington DC for 

both financial and health reasons. While she cannot be in Washington physically, 

she would like her story told and she has given me full authority to add her case 

to the public record, for the July 22, 2014 Employment and Workplace Safety Subcommittee hearing titled: Coal Miners’ Struggle for Justice: How Unethical Legal 

and Medical Practices Stack the Deck Against Black Lung Claimants. 

After not appealing an initial denial of benefits, her husband, Edward Padagomas, 

filed a claim in September 2, 2008. During the pendency of this claim, Edward died 

on October 16, 2008. A widowed Patricia then filed her own claim on November 3, 

2008. Almost 6 months later the Department of Labor issued proposed Orders denying both claims. Mrs. Padagomas requested a hearing before an administrative law 

judge. 

Not until a year later, on April 27, 2010, did the administrative law judge 

conduct the hearing. Not until almost another year later, on February 2, 

2011, did the administrative law judge issue a decision denying benefits. 

In her decision the administrative law judge found that the claimant did not establish that the miner had pneumoconiosis (‘‘black lung’’). Mrs. Padagomas appealed 

this decision to the Benefits Review Board. 

After another year passed, the Benefits Review Board issued a Decision 

and Order on February 23, 2012. In this Decision and Order the Board agreed 

with Mrs. Padagomas’ argument that the administrative law judge improperly reviewed the x-ray and medical opinion evidence of record and remanded both cases 

to the administrative law judge for further review. 

Eighteen months later, on September 19, 2013, the Administrative Law 

Judge issued her second Decision and Order again denying benefits. This 

time the administrative law judge found that Mr. Padagomas did have black lung 

but, in a convoluted and circuitous decision, improperly and irrationally found that 

during his life time the miner was not totally disabled due to black lung and that 

black lung did not contribute to his death. 

Mrs. Padagomas appealed both of these denials again to the Benefits Review 

Board. The matters have been fully briefed as of February 10, 2014. 

In Mrs. Padagomas’ letter reply brief, she correctly noted for the Board that: 

a. the director never filed a cross-appeal to the administrative law judge decision 

and order challenging any administrative law judge finding that Mrs. Padagomas 

established that her husband had black lung; and 

b. because of the director’s failure to file a timely cross-appeal, the director waived 

any right to have the issue of the existence of black lung in this claim. 

Despite their failure, the director, in a blatant and brazen disregard for the applicable statutes, regulations and case law, irrationally tried to raise this issue once 

again in their brief. 

In another cruel twist of fate, today, I reviewed the Benefits Review Board Order 

affirming (more like rubber stamping) the administrative law judge denial of benefits. The decision was long on reiteration of the evidence of record but very short 

on any proper analysis of the evidence and the law. Mrs. Padagomas is again disappointed. She has authorized me to appeal this to the United States Court of Appeals and I will take the steps to file this appeal. 

Edward Padagomas died over 5 years ago. He never saw justice. Patricia 

Padagomas suffers financially and is in poor health. The hope is that she will see 

some measure of justice. 

Very truly yours, 

GEORGE E. MEHALCHICK, Esq. 

BOWLES RICE LLP, ATTORNEYS AT LAW, 

CHARLESTON, WV 25301, 

February 18, 2014. 

INOVA FAIRFAX HOSPITAL, 

Dr. Steven Nathan, Director of Lung Transplants, 

Attn: Rachel, 

3300 Gallows Road, 

Falls Church, VA 22042. 

Re: Robert Bailey, Jr.; US & C Claim #4533214926; Date of injury: 02/23/2009; 

DOB: 06/22/1953 

DEAR DR. NATHAN: Patriot Coal hereby authorizes the additional evaluation and 

testing of Mr. Robert Bailey, Jr., requested for June 12, 2014, for an evaluation only 

for a possible lung transplant. This authorization does not authorize any lung transHELPN-003 with DISTILLER

59 

plant procedure and Patriot reserves the right to approve or disapprove any further 

testing or transplantation in keeping with the applicable regulations and law. We 

continue to note that we expect that any evaluation will include any appropriate 

procedure for definitively determining the disease process present in the lungs of 

Mr. Bailey which necessitates this evaluation or treatment and that copies of all 

records, reports and results of the evaluation will be sent to my attention. 

If you have any questions, please do not hesitate to contact me. 

Very truly yours, 

PAUL E. FRAMPTON. 

UNITED MINE WORKERS OF AMERICA (UMWA), 

TRIANGLE, VA 22172–1779, 

August 20, 2014. 

Hon. ROBERT P. CASEY, JR., 

Employment and Workplace Safety Subcommittee, 

U.S. Senate, 

393 Russell Senate Office Building, 

Washington, DC. 20510. 

Re: Thank You and Update On Coal Miner and Black Lung Advocate Robert Bailey 

DEAR SENATOR CASEY: Thank you for being a long-time friend of coal miners. We 

greatly appreciate your efforts to reduce the backlog of Federal black lung claims, 

and are especially grateful that you organized the hearing last month at which 

UMWA-member and black lung advocate Robert Bailey had an opportunity to address the Employment and Workplace Safety Subcommittee. In addition to our 

thanks, I want to provide you an update as to Mr. Bailey’s health and ongoing fight 

to secure from his former employer a firm commitment to pay for a much-needed 

double lung transplant. 

You may recall at last month’s hearing that Mr. Bailey testified to the difficulty 

he experienced obtaining pre-authorization from Patriot Coal for a medical evaluation to determine the necessity of a lung transplant. Initially, the company denied 

payment authorization for a medical evaluation. After significant lobbying from Mr. 

Bailey, Patriot Coal’s attorney Paul Frampton sent Mr. Bailey a letter indicating 

that the company would pay for the evaluation. 

However, Mr. Frampton’s letter explicitly refused authorization for a lung transplant. 

In the week prior to the July 22nd hearing, Mr. Bailey spent several days undergoing medical evaluation at Inova Hospital in Fairfax, VA. Shortly after the hearing, he received word that the doctors who supervised and reviewed his evaluation 

prescribed a double lung transplant. When Mr. Bailey returned to West Virginia 

from Washington, DC, he experienced extreme shortness of breath and other complications related to his disease. The weekend after the hearing, he was admitted 

to the hospital near his home in Princeton, WV, where he remained for 2 days of 

treatment and observation. 

While Mr. Bailey received medication that has somewhat stabilized his condition 

in recent weeks, he is unfortunately experiencing the progressive deterioration 

wrought by black lung. He urgently needs a transplant. Unfortunately, Mr. Bailey 

has informed me that Patriot has not yet approved his transplant. Rather, he reports the last correspondence he received from Patriot is a lengthy questionnaire 

asking Inova to explain the protocols used in its medical evaluation to determine 

that Mr. Bailey needs the transplant. 

We are working with Mr. Bailey and the Department of Labor with a hope that 

Mr. Bailey will soon receive his much-needed transplant. Thank you for your attention to this and the thousands of other cases of miners having to fight too long to 

obtain black lung benefits. 

Sincerely, 

ARTHUR TRAYNOR, 

Associate General Counsel, 

United Mine Workers of America. 

HELPN-003 with DISTILLER

60 

[Whereupon, at 11:03 a.m., the hearing was adjourned.] 

Æ 

HELPN-003 with DISTILLER