GAO 

United States Government Accountability Office

Report to the Chairman, Subcommittee 

on Health Care, Committee on Finance, 

U.S. Senate 

BLACK LUNG 

BENEFITS PROGRAM

Administrative and 

Structural Changes 

Could Improve 

Miners’ Ability to 

Pursue Claims 

October 2009 

GAO-10-7 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

October 2009 

BLACK LUNG BENEFITS PROGRAM

Administrative and Structural Changes Could 

Improve Miners’ Ability to Pursue Claims

Highlights of GAO-10-7, a report to the 

Chairman, Subcommittee on Health Care, 

Committee on Finance, U.S. Senate 

The Department of Labor (DOL) 

Black Lung Benefits Program 

provides medical and income 

assistance to coal miners who 

suffer total disability or death due 

to lung disease caused by coal dust. 

To provide insight into DOL’s 

administration of the Black Lung 

Benefits Program, GAO is reporting 

on (1) how long it takes to process 

and resolve black lung benefits 

claims; (2) at what rate and for 

what reasons black lung claims and 

appeals are denied by DOL; and (3) 

what barriers, if any, confront 

miners or their survivors in 

pursuing their claims. GAO 

collected and analyzed black lung 

claims and appeals data and 

interviewed officials at relevant 

federal agencies, national 

organizations, and selected local 

organizations at two sites. 

What GAO Recommends

GAO recommends that DOL 

implement several administrative 

changes, including creating a 

measure to improve the agency’s 

ability to track performance and 

improving the DOL form used to 

document claimant medical 

evaluations. GAO also recommends 

that DOL evaluate the potential for 

proposing, to Congress, several 

structural changes to the program, 

including strategies for increasing 

claimant representation and 

improving requirements for 

documenting evidence. DOL agreed 

with most of the recommendations 

and will begin to evaluate potential 

structural changes, but disagreed 

that DOL should track performance 

through the claims and appeals 

process. 

In fiscal year 2008, DOL issued decisions on claims in less than 1 year on 

average at each stage of adjudication, yet according to officials and experts, 

the appeals and remands (claims sent back to the prior stage of review for 

further consideration or development) that follow decisions can keep claims 

in the system for years. Although DOL does not track how long all claims 

remain in the claims and appeals process, we examined 763 miner claims filed 

between 2001 and 2008 that were ultimately awarded benefits by mine 

companies. We found that mine companies agreed to pay benefits for about 73 

percent of these claims within 3 years from the date of the initial claim, 

roughly 24 percent of claims in 3 to 6 years, and the remaining 4 percent in 6 

to 8 years. The program also contains financial incentives for both miners and 

mining companies to keep claims in the appeals process. For example, some 

miners may extend the appeals process to maintain their payment of interim 

benefits. Factors that add additional time to the appeals process also include 

allowing time for claimants to find legal representation and waiting until there 

are sufficient cases in rural areas before sending a judge to hold a hearing. 

In 2008, most claims (87 percent) were initially denied. Few claimants are able 

to prove they meet all of the program’s eligibility requirements, and for certain 

cases, required conditions are difficult to prove. For example, some miners—

those with a history of smoking—develop lung disease associated with longterm exposure to coal mine dust but which frequently cannot be detected by 

X-ray. Though current science does not allow a medical distinction between 

lung disease caused by smoking and by coal mine dust, regulations require 

that claimants establish that their lung disease is significantly related to or 

substantially aggravated by coal dust. In such cases, judges told us they rely 

heavily on nonclinical evidence, such as physician credentials, length of 

depositions, and level of sophistication of evidence presented by claimants 

and mine operators to determine claimant eligibility. According to some DOL 

administrative law judges, mining company doctors are usually better 

credentialed and produce lengthier and more sophisticated medical reports 

and evaluations. 

GAO found that coal miners face a number of challenges pursuing federal 

black lung claims, including finding legal representation and developing sound 

medical evidence to support their claims. DOL officials identified miners’ lack 

of resources, the low probability of success, and high litigation costs for their 

cases as factors that contribute to the difficulties miners face in finding legal 

representatives. Miners also encounter challenges in developing sound 

medical evidence. DOL administrative law judges said medical evidence 

prepared by DOL-approved doctors for claimants does not always provide 

sound or thorough evidentiary support for their claims. Further, various 

practices of medical testing, a key measure of black lung-related disability, 

may contribute to inaccurate disability test readings. 

View GAO-10-7 or key components.

For more information, contact Andrew Sherrill 

at (202) 512-7215 or sherrilla@gao.gov. 
Page i GAO-10-7 

Contents 

Letter 1

Background 3 

DOL Issued Claims Decisions at Each Stage of the Process, on 

Average, in 1 Year or Less, but High Rates of Appeal and 

Remand, Among Other Factors, Delay Resolution of Many 

Claims 10 

Most Claims Are Initially Denied, Most Often because Claimants 

Cannot Meet All Evidentiary Requirements 19 

Coal Miners Face a Number of Challenges in Pursuing Federal 

Black Lung Benefits, Including Finding Legal Representation 

and Developing Sound Medical Evidence 24 

Conclusions 31 

Recommendations for Executive Action 32 

Agency Comments and Our Evaluation 33 

Appendix I Objectives, Scope, and Methodology 37 

Appendix II Comments from the Department of Labor 41 

Appendix III GAO Contact and Staff Acknowledgments 52 

Tables 

Table 1: Performance Data for Each Stage of Claims Processing 

and Adjudication in Fiscal Year 2008 11 

Table 2: The Number of Black Lung Claims and Appeals Decisions 

Issued and the Percent That Resulted in Denial of 

Claimant Benefits in Fiscal Year 2008 20 

Figures 

Figure 1: Deaths Related to Black Lung Disease from 1968 to 2005 5 

Figure 2: Overview of the Black Lung Claims Adjudication Process 8 

Figure 3: Time to Resolve Claims Filed between 2001 and 2008 for 

Miners Awarded Benefits from Mine Companies 14 

 Black Lung Benefits Program 
Abbreviations 

BRB Benefits Review Board 

COPD Chronic Obstructive Pulmonary Disorder 

CWP Coal Workers’ Pneumoconiosis 

DOL Department of Labor 

HRSA Health Resources and Services Administration 

NIOSH National Institute for Occupational Safety and Health 

OALJ Office of Administrative Law Judges 

OWCP Office of Workers’ Compensation Programs 

RO responsible mine operator 

UMWA United Mine Workers of America 

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Page ii GAO-10-7 Black Lung Benefits Program
Page 1 GAO-10-7 

 

United States Government Accountability Office

Washington, DC 20548 

 

October 30, 2009 

The Honorable John D. Rockefeller IV 

Chairman 

Subcommittee on Health Care 

Committee on Finance 

United States Senate 

Dear Mr. Chairman: 

The Black Lung Benefits Program, created in 1969 by Congress,1

 provides 

medical treatment and monthly income assistance2

 to miners who can 

prove that they are totally disabled—unable to perform usual coal mine 

work due to pulmonary impairment—resulting from lung disease caused 

by coal dust. Their surviving dependents may also apply for compensation. 

Serving more than 40,000 beneficiaries and paying more than $250 million 

in benefits in fiscal year 2008, the Black Lung Benefits Program remains a 

significant source of black lung compensation for the nation’s coal miners. 

However, with average claim approval rates historically below 15 percent 

and with reports of some cases that take years to resolve, concerns have 

been raised about the extent to which federal black lung benefits are 

accessible to miners or to their survivors and dependents. 

The program is administered by the Division of Coal Mine Workers’ 

Compensation in the Office of Workers’ Compensation Programs (OWCP) 

within the Department of Labor (DOL). Claims are processed by nine 

OWCP district offices, and appeals are adjudicated by two DOL agencies: 

the Office of Administrative Law Judges (OALJ) and the Benefits Review 

Board (BRB). Claimants and mine operators may further appeal these 

agency decisions to the federal appellate courts. Awards are funded from 

two sources: mine operators who are identified as the responsible 

employers of claimants and, when responsible employers cannot be 

identified, the Black Lung Disability Trust Fund. The Trust Fund, which is 

1

Title IV of the Federal Coal Mine Health and Safety Act of 1969 (Pub. L. No. 91-173), as 

amended, 30 U.S.C. § 901, et seq., commonly referred to as the Black Lung Benefits Act. 

2

Monthly income payments can range from $616 to $1,232.60 and vary by the number of 

dependents claimed by a miner. Black lung income payment amounts may only be offset by 

other state workers’ compensation or other federal disability payments, which are awarded 

for the same disease. 

 Black Lung Benefits Program 
 

administered by OWCP, is supported through an excise tax levied on all 

underground coal mine operators. 

To gain insight into the administration of the Black Lung Benefits 

Program, you asked that we determine (1) how long it takes to process 

and resolve black lung benefit claims; (2) at what rate and for what 

reasons black lung claims and appeals are denied by DOL; and (3) what 

barriers, if any, confront miners or their survivors in pursuing their claims. 

To answer these questions, we interviewed officials from the three DOL 

agencies responsible for claims processing and adjudication—OWCP, 

OALJ, and BRB. To learn how long it takes to process and resolve black 

lung benefit claims, we collected and analyzed case processing data from 

OWCP, OALJ, and BRB. To determine the rate and reasons that OWCP 

denied black lung claims, we collected and analyzed data from OWCP’s 

case management system. To determine the rate that OALJ and BRB 

decisions resulted in the denial of black lung claims, we reviewed OALJ 

and BRB appeals cases decided in fiscal year 2008 and calculated the 

number of denials and the total number of cases and then computed a 

denial rate. To determine the reasons that OALJ and BRB have denied 

black lung claims, we selected and analyzed random samples of OALJ and 

BRB cases denied in fiscal year 2008 and projected the results onto the 

population. We assessed OWCP, OALJ, and BRB processing and denial 

data for reliability. On the basis of this assessment, we concluded that the 

data were sufficiently reliable for the purposes of our report. To describe 

the barriers that miners and survivors face, we interviewed Health 

Resources and Services Administration (HRSA) officials to get more 

information about the Black Lung Clinics program, a program that 

provides grants to public and private nonprofit organizations to provide 

specialized diagnosis, treatment, benefit counseling, and outreach services 

to miners suffering with black lung disease. We also interviewed officials 

from the National Institute for Occupational Safety and Health (NIOSH) to 

learn about the state of science related to identifying black lung disease 

and its cause. We also conducted site visits to West Virginia and Kentucky, 

black lung-affected regions. These two sites were selected because they 

are (1) located in a state with a high level of black lung mortality, (2) 

located in an OWCP district with a high volume of black lung claims 

filings, and (3) identified by black lung experts as demonstrative of factors 

that impede or facilitate claimants’ pursuit of federal black lung claims and 

appeals. During the site visits, we conducted a small group interview with 

local black lung stakeholders at each site, toured black lung clinic 

facilities, and met with officials from OWCP district offices responsible for 

adjudicating a claimant’s initial claim. In addition to our site visits, we also 

Page 2 GAO-10-7 Black Lung Benefits Program
 

interviewed spokespeople at national organizations related to black lung, 

including the National Mining Association, an organization that represents 

the mining industry, as well as the United Mine Workers of America 

(UMWA), a union that represents coal miners. In addition, we reviewed 

relevant federal statutes, regulations, administrative cases, and court 

cases. We conducted this performance audit from October 2008 to October 

2009 in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient and appropriate evidence to provide a reasonable basis 

for our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. For additional information 

on our scope and methodology, see appendix I. 

According to NIOSH, coal workers’ pneumoconiosis (CWP), also known as 

black lung disease,3

 has been a contributor or underlying cause of death 

for more than 73,800 United States workers since 1968 (see fig.1).4

Following the passage of the Federal Coal Mine Health and Safety Act of 

1969, which established the first comprehensive respirable dust standards 

for coal mines, the prevalence of black lung disease among mine workers 

decreased about 90 percent from 1969 to 1995. However, after 1995, the 

prevalence of black lung disease rose. The increase was more marked in 

specific parts of the country, such as the Appalachian region.5

 By 2006 the 

prevalence of black lung disease had more than doubled among 

underground coal miners who had worked 25 to 29 years—increasing from 

3.4 percent in 1995 to 7.9 percent. The rate of black lung disease among 

underground coal miners with 20 to 24 years of experience increased from 

Background 

 

3

Black lung is a term that includes coal workers’ pneumoconiosis and any other chronic 

respiratory or pulmonary impairment arising out of coal mine employment. 30 U.S.C.§ 902 

(b). The statistics on black lung disease included in the background section of this report 

refer to CWP only. 

4

These data were extracted from the National Occupational Respiratory Mortality System 

administered by the U.S. Department of Health and Human Services, Public Health Service, 

Centers for Disease Control and Prevention, and the Surveillance Branch of NIOSH’s 

Division of Respiratory Disease Studies at http://webappa.cdc.gov/ords/norms.html

(accessed, August 3, 2009). The Web site provides data on deaths from 1968 to 2005. 

5

NIOSH collects information on the prevalence of black lung disease among underground 

coal miners through its Coal Workers’ Health Surveillance Program and Enhanced Coal 

Workers’ Health Surveillance Program. According to NIOSH, about 30 percent of 

underground coal miners participate in these black lung screening programs. 

Page 3 GAO-10-7 Black Lung Benefits Program
 

2.5 percent in 1995 to 6 percent in 2006.6 According to NIOSH officials, 

black lung disease may be occurring for a number of reasons, including 

weaknesses in the current coal mine dust regulations, noncompliance with 

those regulations, new risk factors associated with changing mining 

conditions, longer work hours, and missed opportunities to prevent severe 

disease through periodic medical screening. 

According to NIOSH, significant progress has been made toward 

improving the health conditions in our nation’s coal mines; however, with 

coal currently mined in 27 states7

 and coal mines employing an average of 

117,082 workers,8

 coal miners continue to be at risk of developing 

occupational lung disease. While miners across the country remain at risk 

for lung disease, incidence of black lung-related deaths are more 

concentrated in the Appalachian region (see fig. 1), where the coal mined 

has high carbon content. To address these issues, the DOL’s Mine Safety 

and Health Administration intends to publish a proposed rule to lower the 

coal mine dust permissible exposure limit in April 2011. 

 

6

These percentages represent underground coal miners who participated in the Coal 

Workers’ Health Surveillance Program. 

7

According to the Department of Energy, the state of Wyoming mines the most coal, 

followed by West Virginia, Kentucky, Pennsylvania, and Texas. 

8

These data reflect the number of coal mine workers in 2007. This number includes mine 

contractors and excludes office employees working at coal mines. 

Page 4 GAO-10-7 Black Lung Benefits Program
 

Figure 1: Deaths Related to Black Lung Disease from 1968 to 2005 

Sources: Energy Information Administration’s Annual Coal Report, 2007; NIOSH Occupational Respiratory Disease Surveillance program.

Appalachian

Coal Region

Western Coal Region

Interior

Coal Region Appalachian

Coal Region

Western Coal Region

Interior

Coal Region

Number of black lung-related deaths

in the county between 1968 and 2005

100 1,000 5,000

Major U.S. coal producing regions

Luzerne

County,

Penn.

14,923

deaths

Note: The statistics used to create this graphic only refer to CWP, not other chronic respiratory or 

pulmonary impairments arising out of coal mine employment. 

The Black Lung Benefits Program provides medical and income assistance 

to coal mine workers who suffer disability or death due to black lung 

Page 5 GAO-10-7 Black Lung Benefits Program
 

disease.9 To be eligible for black lung benefits, a coal miner must prove 

total disability due to pneumoconiosis (a chronic disease of the lung) 

arising from coal mine employment. Specifically, the miner must establish 

each of the following elements: (1) the miner has pneumoconiosis; (2) the 

lung disease arose from coal mine employment;10 (3) the miner suffers 

from a totally disabling respiratory or lung impairment (a miner is 

considered totally disabled if black lung prevents him from engaging in his 

usual coal mine work); and (4) the miner’s pneumoconiosis is a 

substantially contributing cause of his disability.11

If a claimant12 is awarded benefits, the mine company that is determined to 

be the responsible employer of the miner generally must provide for the 

payment of benefits, either directly or through insurance. The Black Lung 

Disability Trust Fund pays the cost of black lung claims when no coal 

mine operator can be held liable for payments.13 The Black Lung Disability 

Trust Fund is financed by coal mine companies through an excise tax. 

Under the Black Lung Benefits Revenue Act of 1977, each coal mine 

operator is required to pay an excise tax to support payment of benefits to 

claimants and to cover the cost of administering the program.14

 

9

Benefits are also provided to eligible survivors of miners whose death was due to black 

lung disease. 20 C.F.R. § 718.205 (2009). Federal black lung benefits are offset by state 

workers’ compensation benefits for the same disease. If state black lung benefits are less 

than federal black lung benefits, then the federal black lung program covers the difference. 

Social Security disability benefits are also reduced by the amount of black lung benefits 

received. 20 C.F.R. § 725.535 (2009). 

10For a miner with 10 years of coal mine employment and who suffers from CWP, there is a 

rebuttable presumption that the miner’s lung disease resulted from coal mine employment. 

11For miners who have X-ray evidence of lesions and/or scarring on their lungs greater than 

1 centimeter, there is an irrebuttable presumption that the miner is totally disabled due to 

pneumoconiosis. 

12Claimant refers to the miner or the miner’s eligible survivor. For the purposes of this 

report, we will use the word “claimant” to refer to both miners and the miners’ eligible 

survivors, unless otherwise noted. 

13The trust fund pays the cost of black lung claims: (1) where the miner’s last coal mine 

employment was before January 1, 1970; (2) where no responsible coal mine operator has 

been identified in claims where the miner’s last coal employment was after December 31, 

1969; or (3) where the responsible mine operator has defaulted on the payment of such 

benefits. 

14Until recently, the trust fund was in chronic deficit—expending more than what it 

collected in taxes—but the Emergency Economic Stabilization Act of 2008 (Pub. L. No. 110-

343) provided an appropriation to repay a portion of the fund, and permitted DOL to 

restructure and retire the remaining debt. 

Page 6 GAO-10-7 Black Lung Benefits Program
 

The Black Lung Benefits Program is administered by the Division of Coal 

Mine Workers’ Compensation in OWCP. OWCP, OALJ, and BRB are three 

independent bodies within DOL that process claims, adjudicate cases, and 

issue decisions (see fig. 2).15 Once OWCP issues a decision, either the 

claimant, responsible mine operator (RO), or Black Lung Disability Trust 

Fund officials can request a hearing16 by OALJ. The administrative law 

judge provides a fresh review of the evidence and issues a decision. Any 

findings or conclusions by OWCP are not relevant or binding on the 

administrative law judge. Parties can appeal OALJ decisions to BRB, BRB 

decisions can be appealed to the appropriate United States Circuit Court 

of Appeals, and finally, Circuit Court of Appeals decisions may be 

appealed to the Supreme Court of the United States. Both OALJ and BRB 

can remand—send claims back—to lower adjudicative bodies for 

additional review. Cases may be remanded for procedural errors or for 

further development of evidence. 

 

15OWCP, OALJ, and BRB also administer and review claims arising under other statutes and 

programs, including the Longshore and Harbor Workers’ Compensation Act. 

16For ease of discussion, this report will refer to requests for an administrative law judge 

hearing as an “appeal.” 

Page 7 GAO-10-7 Black Lung Benefits Program
 

Figure 2: Overview of the Black Lung Claims Adjudication Process 

Source: GAO analysis of federal regulations, agency documents, and discussions with agency officials.

CLAIMANT

(miner, his dependents,

his survivors, or

others) files claim 

Decision issued 

on claimant’s

entitlement

and any liability 

of RO 

TF pays

claimant 

interim 

benefits if 

RO delays AWARDED

Did RO

dispute

decision?

OWCP

Office of Workers’

Compensation

Programs

Claimant and RO given 

opportunity to submit 

additional evidence

Claim evaluated

after employment, 

medical, and other 

information gathered

OALJ

Office of

Administrative

Law Judges

If claimant, TF,

or RO appeal, 

BRB reviews

OALJ decision 

If claimant, 

TF, or RO 

appeal, 

court 

reviews

BRB 

decision 

Decision 

issued 

affirming, 

reversing, 

or modifying 

BRB 

decision

BRB

Benefits

Review Board

U.S.

Court of

Appeals

Preliminary

assessment issued on 

claim and any potential 

liability of responsible 

mine operator (RO)

Formal 

hearing

Claimant paid 

by TF or RO, 

which can 

appeal

Decision issued on 

claimant’s entitlement 

and any liability of RO 

Was RO

identified?

DENIED

DENIED

APPEAL

AWARDED

YES

YES

NO

NO

Trust 

Fund 

(TF)

pays

claimant 

benefits

RO pays

claimant 

benefits

Decision

issued

affirming, 

reversing,

or modifying

OALJ decision

Claimant paid 

by TF or RO, 

which can 

appeal

APPEAL

AWARDED

DENIED

If still 

unsatisified, 

claimant, 

TF, or RO 

can petition 

the U.S. 

Supreme 

Court

If claimant, TF, 

or RO appeal, 

OALJ will 

perform a fresh 

analysis of the 

evidence.

Claimant 

and/or RO may 

be allowed to 

submit new 

medical 

evidence

Notes: This figure is intended to present a basic overview of the Black Lung Benefits Program’s 

claims process. For clarity, some steps, processes, and legal options for any party to a claim are 

omitted. 

Modification of a claim may be requested up to one year after a decision denying benefits or by any 

party up to one year after the last payment of benefits. 

Page 8 GAO-10-7 Black Lung Benefits Program
 

To ensure that claimants can properly develop evidence for their claim, 

DOL is required by law to give miners the opportunity to receive a 

complete pulmonary evaluation, which is paid for by the program.17 DOL 

provides the miner with a list of doctors and medical facilities that DOL 

has authorized to perform complete pulmonary evaluations that are 

located in the state of the miner’s residence and bordering states.18 If a 

miner fails to undergo a required medical examination without good 

cause, the claim may be denied.19 In addition, a miner20 may submit a 

medical report (obtained at the miner’s expense) from a personal doctor 

or a physician.21

In addition, mine workers afflicted with black lung disease may have 

access to some resources that help monitor their health and provide 

access to black lung benefits. For example, the Black Lung Clinics 

program, a federal program administered by HRSA, provides grants to 15 

public and private nonprofit organizations, known as “Black Lung Clinics,” 

which provide specialized diagnosis and treatment services, outreach, and 

educational programs to help patients and their families deal with the 

disease. Black Lung Clinic benefit counselors also help provide clients 

with information about additional sources of social, medical, and legal 

assistance, specifically on where to obtain legal representation to establish 

a federal black lung benefits claim. In addition, some nonprofit 

organizations provide resources and support for coal miners and their 

survivors. For example, UMWA advocates for improving coal mine health 

and safety laws and regulations, and the Washington and Lee University 

Black Lung Legal Clinic provides legal assistance to coal miners and their 

survivors in pursuing federal black lung benefits. 

 

1730 U.S.C.§ 923 and 20 C.F.R. § 725.406 (2009). 

18Currently, there are 177 doctors practicing in 111 different medical facilities on DOL’s 

authorized list. 

1920 C.F.R. § 725.409 (2009). 

20DOL regulations also direct how claims are to be handled in the event that the miner dies 

of pneumoconiosis before a claim is filed. See, e.g., 20 C.F.R. § 718.104 (c) and 20 C.F.R. § 

718.205 (d). 

2120 C.F.R. § 725.414 (2009). 

Page 9 GAO-10-7 Black Lung Benefits Program
 

DOL Issued Claims 

Decisions at Each 

Stage of the Process, 

on Average, in 1 Year 

or Less, but High 

Rates of Appeal and 

Remand, Among 

Other Factors, Delay 

Resolution of Many 

Claims 

DOL Issued Claims 

Decisions at Each Stage of 

the Claims Process, on 

Average, in 1 Year or Less 

According to department data for fiscal year 2008, DOL decided claims at 

each stage of the claims process, on average, in 1 year or less, meeting its 

respective performance goals22 (see table 1). At the initial stage of claim 

processing, it took an average of 205 days for OWCP to issue a decision 

from the date the claim was received.23 OWCP receives the largest number 

of claims for miners or their dependents annually. At the first and second 

stages of appeal, OALJ averaged within 365 days to issue a decision on a 

claim from the date a transcript of the hearing was prepared, while BRB 

averaged 341 days to make a decision from the date the claim was 

received. 

 

22Performance goals vary across OWCP, OALJ, and BRB because, according to DOL 

officials, the goals are independently established. 

23According to an independent study commissioned by DOL, in recent years OWCP has 

reduced the average time it takes to decide claims from 323 days in FY 2004 to 250 days in 

2006. 

Page 10 GAO-10-7 Black Lung Benefits Program
 

Table 1: Performance Data for Each Stage of Claims Processing and Adjudication in 

Fiscal Year 2008 

Average days to issue decision 

Level of claims 

and appeals 

Total new 

claims

Total 

decisionsa

Performance 

goal 

Actual

performance

Office of 

Workers 

Compensation 

(OWCP) 4,269 4,416 220b

205 

Office of 

Administrative 

Law Judges 

(OALJ) 1,357c

1,367 ≤365d≤365 

Benefits 

Review Board 

(BRB) 573e

727 ≤365 341

Source: Workload and performance data from OWCP, OALJ, and BRB, as well as from OWCP’s Automated Support Package claims 

tracking system. 

Notes: The annual number of claims received at first and second appeals tends to be less than those 

received at the initial claims processing stage because many claims at OWCP are withdrawn, 

abandoned, or awarded or denied without appeal. 

a

Total decisions are greater than the total number of new claims at each stage, because the total 

workload at each stage is not captured solely with new claims (e.g., these data only represent the 

new claims filed in fiscal year 2008 and do not include claims yet to be decided from previous fiscal 

years). For OWCP, data on pending claims from the previous fiscal year were not available. However, 

pending claims carried over from the previous fiscal year for OALJ and BRB are detailed below. 

In addition, these data for the number of claims do not include a number of claims for which OWCP 

provides services for claimants currently receiving benefits (e.g., miners receiving benefits may 

submit a claim requesting modification of medical benefits provided). 

b

This performance goal is for all types of claims, including claims with and without an identified RO 

and claims that are withdrawn or abandoned. 

c

In fiscal year 2008, OALJ also had 1,938 pending claims carry-over from the previous fiscal year. 

d

OALJ does not calculate the average time to issue a decision on claims, but for fiscal year 2009, it 

established a new performance goal: that 80 percent of decisions are to be issued within 365 days 

from the time a hearing transcript was prepared. For this report, OALJ applied the new performance 

goal retroactively to fiscal year 2008 and found that about 84 percent of decisions were issued within 

365 days. 

e

In fiscal year 2008, BRB also had 617 pending claims carry-over from the previous fiscal year. 

DOL Does Not Track How 

Long Claims Remain in the 

Process, but Some Claims 

Spent 3 Years or More in 

the Process 

DOL does not track how long all claims remain in the claims and appeals 

process, but we calculated that about 28 percent of the claims of miners 

awarded benefits from mine companies spent 3 years or more in the 

process. DOL officials gave the following reasons for not tracking how 

long claims may remain in the claims and appeals process: 

Page 11 GAO-10-7 Black Lung Benefits Program
 

• The adjudicating bodies at each stage of the Black Lung Benefits 

Program’s claims and appeals process maintain independence and do not 

share similar administrative processes or computer systems. 

• OWCP’s claimant tracking system was designed, in part, to ensure that 

eligible claimants are ultimately paid, not to determine how long claims 

remain in the process. 

• Determining how long claims persist in the claims and appeals process can 

be challenging because it is difficult to determine what constitutes a 

claim’s resolution. For example, claims can be appealed up to 30 or 60 

days after a decision, and a modification of a claim may also be requested 

up to one year after a decision denying benefits or by any party up to one 

year after the last payment of benefits. 

Given this, we chose to measure how long cases persisted in the claims 

and appeals process by using OWCP’s data and looking only at when an 

identified RO agreed to pay benefits to a miner, which we believe was the 

best available indicator of cases that had been resolved.24 Yet, this 

approach has some limitations as noted above.25

For the claims we examined, which were filed between 2001 and 2008, 

mine companies agreed to pay benefits for the majority of claims within 3 

years from the date of the initial claim, while a minority of claims 

remained in the process for as many as 8 years before an RO agreed to 

pay26 (see fig. 3). We only focused on those claims where a miner was 

 

24Using these data, our analysis could not determine whether or not further action had been 

requested within 1 year of the decision date. Under the program, any party (claimant or 

mine operator) may petition an OWCP district director for modification within 1 year of the 

last payment of benefits or denial of a claim. 20 C.F.R. § 725.310 (2009). Our examination 

did not determine whether or not a claim was modified after a RO agreed to pay benefits. 

25For additional information on the analysis conducted, see appendix I. 

26We also examined 3,073 claims submitted between 1982 and 2000, where a miner was 

ultimately awarded benefits by an RO. Mine companies agreed to pay benefits in 3 years or 

less for about 47 percent of claims, between 3 and 6 years for 34 percent, and between 6 

and 20 or more years for roughly 19 percent of claims. However, using the data that DOL 

provided, we were not able to determine if, or how many, claims were subsequently 

modified. According to DOL officials, some claimants may have been receiving payments 

from an RO for several years, only then to have those payments challenged in court. For 

example, a claimant may have begun receiving payments from an RO in 1982, but in 2002, 

the mine company filed a modification alleging that they should not have been designated 

as the company responsible for the payment of benefits. In such a case, under our analysis, 

it may appear that an RO did not agree to pay benefits for 20 years. 

Page 12 GAO-10-7 Black Lung Benefits Program
 

ultimately awarded benefits by an RO because, according to DOL officials, 

these claims are likely to be the most litigated.27 We also focused on claims 

made between 2001 and 2008 because DOL officials said that several 

changes in the regulatory and statutory structure of the program before 

then negatively impacted the rate at which claims moved through the 

process and that major regulatory revisions implemented in 200128 heavily 

affected the current program’s procedures. For about 73 percent of the 763 

examined claims filed between 2001 and 2008, ROs agreed to pay in less 

than 3 years. For roughly 24 percent of the 763 claims, ROs agreed to pay 

within 3 to 6 years from the time the claim was filed. For the few 

remaining claims, about 4 percent, ROs agreed to pay within 6 to 8 years 

from the time a claim was filed.29 However, the results of our analysis may 

represent a best-case scenario because some claims filed between 2001 

and 2008 are still in the claims and appeals process and the length of time 

necessary for a RO to agree on payment could not be measured. In 

addition, these findings cannot be generalized to miners who were denied 

benefits or other types of claimants. 

 

27DOL officials said that awarded claims—where an RO is identified—are often appealed by 

mine companies. 

28DOL officials also said that the adjudication of all claims in the program was held up for 

nearly a year because of a judicial stay issued in 2001. Consequently, the processing and 

adjudication of claims in 2001 was delayed due to circumstances beyond DOL’s control. 65 

Fed. Reg. 79920 (Dec. 20, 2000). 

29If an award is contested, claimants receive interim benefits while their claims are in the 

appeals process. 20 C.F.R. § 725.420 (2009). However, according to DOL officials, claimants 

who appeal denied claims typically do not receive interim benefits. 

Page 13 GAO-10-7 Black Lung Benefits Program
 

Figure 3: Time to Resolve Claims Filed between 2001 and 2008 for Miners Awarded 

Benefits from Mine Companies 

Notes: Percentages may not add to 100 due to rounding. In addition, this analysis measured the time 

from the application date of a claim to the time an RO agreed to pay benefits as measured by 

OWCP’s Automated Support Package claims tracking system. However, OWCP may not have 

received some claims for several months after the claim was originally submitted by a claimant. 

Moreover, according to DOL officials, the time taken for a miner to receive the first benefits payment 

from the RO may actually take as much as a month longer for administrative reasons. Finally, this 

analysis did not include miners who were denied benefits, deceased miners’ widows or other 

dependents, or miners who were granted awards from the Black Lung Disability Trust Fund. For more 

information on this analysis, see appendix I. 

According to DOL officials, far fewer claims end up in the appeals process 

now than was the case historically due to a decline in the number of 

claims and the fact that presently, for the majority of claims, there is no 

request for further action beyond OWCP’s decision. According to DOL 

officials, on average, about 80 percent of all claims decided by OWCP 

annually have no requests for further action. For example, in fiscal year 

2006, OWCP decided about 81 percent of all claims with no requests for 

further action pending after one year. In addition, DOL officials said that 

for a number of reasons—including a decline in the number of miners in 

the United States—they receive far fewer claims annually than in prior 

years. For example, according to data provided by DOL, in fiscal year 

1985, 12,250 new claims were filed at OWCP, while there were only 4,269 

new claims filed in fiscal year 2008. 

Number of claims

Source: GAO analysis of data from the Department of Labor’s Automated Support Package claims tracking system.

Years to resolution

0

50

100

150

200

250

0 1 34567 2 8

73%

of all claims

took less

than 3 years

24%

took 3 to 6 years

4%

took more

than 6 years

257

173

124

75

58

48

20

8

Page 14 GAO-10-7 Black Lung Benefits Program
 

Although a majority of claims are resolved with OWCP, we found that a 

significant number of claims—approximately 20 percent—request further 

action, many of which are appeals to OALJ. Both miners and mine 

operators frequently seek appeals,30 and a significant number of claims are 

appealed after a decision is issued by OWCP either awarding or denying 

benefits.31 For example, in fiscal year 2008, for claims where an RO was 

identified and OWCP awarded benefits to a claimant, mine operators 

appealed OWCP’s decision approximately 80 percent of the time.32 In the 

same fiscal year, approximately 15 percent of all miners’ claims denied at 

OWCP were appealed by miners. In addition, according to BRB officials, 

between fiscal years 2004 and 2008, approximately 43 percent of all claims 

decided by OALJ were appealed to BRB, and about 10 percent of all BRB 

decisions were appealed to federal appellate courts. 

A Significant Number of 

Claims Are Appealed and 

Many Claims Are 

Remanded 

In addition to the significant number of claims that are appealed, many are 

remanded back to the prior review stage by DOL adjudicators, according 

to DOL officials. Officials said remands can extend appeals for less than 1 

month to up to 1 year, depending on why a claim is remanded and other 

factors. In fiscal year 2008, BRB remanded one-third of all claims referred 

to it back to one of the two lower bodies, while OALJ remanded 13 percent 

of claims it considered back to OWCP. Claims are remanded for several 

reasons. At the first stage of appeal (OALJ), remands are made when 

evidence needs to be developed further or when the appeal is withdrawn 

by the litigant or dismissed by the judge.33 At the second stage of appeal 

(BRB), remands are made to either OWCP for the resolution of issues, 

 

30A claim may be appealed by a miner or a miner’s eligible survivors (e.g., a surviving 

spouse or dependents), an RO, the insurance carrier, or by a district director. 20 C.F.R. § 

725.360 (2009). According to DOL officials, a third-party administrator may also appeal a 

claim on behalf of a mine company. Third-party administrators manage the claims process 

for insurance carriers or self-insured employers by providing services such as claims 

administration, investigation, insurance negotiations, accounting, legal, and claim loss 

analysis. 

31DOL officials said that miners or their dependents occasionally appeal claims awarding 

benefits because of disputes over the size of the monetary award, the timing of payment, or 

other issues. 

32The percentage of claims appealed for fiscal year 2008 do not include claims that were 

abandoned, withdrawn, or where no RO was identified. 

33OALJ may also issue remands when the RO agrees to pay benefits without further 

litigation. In these instances, claims are sent back to OWCP for the implementation of an 

agreement to pay benefits. 

Page 15 GAO-10-7 Black Lung Benefits Program
 

such as the proper development of evidence, or to the OALJ for 

reconsideration. 

Officials at DOL offered divergent opinions on why cases were remanded. 

Some administrative law judges said claims are sometimes remanded to 

OWCP because medical evidence submitted by DOL’s approved doctors 

was incomplete and required clarification or further development. BRB 

judges said claims are commonly remanded to OALJ for reconsideration 

because of certain legal deficiencies, such as errors in weighing evidence. 

However, several administrative law judges said that they believed that 

BRB sometimes remands claims for further review by the administrative 

law judge to avoid the potential review of a BRB decision by a United 

States Circuit Court of Appeals, and others said that in their view, certain 

remands are the result of BRB reweighing evidence, which is beyond the 

narrow scope of BRB review.34 In 2007, an independent program reviewer 

examined the number of OALJ remands to OWCP and concluded that 

further study of the causes of remands could help DOL identify policies 

and procedures that reduce this source of delays.35 No study has been 

conducted to determine the causes of remands by any of DOL’s 

adjudicators back to the prior review stage, whether from adjudicatory 

bodies back to OWCP or from BRB to OALJ, according to DOL officials.36

 

34BRB is not empowered to engage in an initial consideration of evidence or unrestricted 

review of a case brought before it. Pursuant to section 21(b)(3), 33 U.S.C. § 921(b)(3) of the 

Longshore and Harbor Workers’ Compensation Act, as incorporated into the Black Lung 

Act by section 422, 30 U.S.C. § 932. BRB is authorized to review the findings of fact and 

conclusions of law of administrative law judges in cases on appeal before it, on which the 

decision or order appealed from was based, and such findings may be set aside only if they 

are not, in the judgment of the BRB, supported by substantial evidence in the record 

considered as a whole or in accordance with law. 20 C.F.R. § 802.301 (2009). For example, 

in one case, the U.S. Court of Appeals for the Sixth Circuit held that in requiring the 

administrative law judge to re-evaluate the evidence, the BRB had evaluated each fact and 

thus exceeded the narrow scope of review, which it is accorded under 20 C.F.R. § 802.301

(2009). Campbell v. Consolidation Coal Co., 811 F.2d 302 (6th Cir. 1987). 

35ICF International, Evaluation of the Efficiency and Effectiveness of the Black Lung 

Program (June 13, 2007). 

36OWCP officials noted that the reasons for remands to OWCP are well understood and 

primarily occur because claims require further development of medical evidence; 

therefore, no formal study was necessary for OWCP to focus on reducing this source of 

delays. 

Page 16 GAO-10-7 Black Lung Benefits Program
 

The structure of the Black Lung Benefits Program creates financial 

incentives for claimants to appeal denials of claims. According to DOL 

officials, some miners extend appeals in an attempt to have interim 

benefits reinstated or to maintain their payment of interim benefits. 

Specifically, for miners whose claims are initially awarded but then 

appealed, the program provides interim benefit payments that cover 

medical expenses and a roughly $600 to $1,200 monthly stipend. 

Consequently, if an award is overturned by OALJ or BRB, the claimant has 

a major incentive to appeal again in an attempt to reinstate these benefits. 

Moreover, according to DOL officials, some sick miners never expect to 

win their claim by filing appeals; rather, the approach is to keep their 

black lung claim alive—for example, by requesting numerous 

continuances—until their death, with the expectation that DOL will not 

seek to recoup interim benefit payments from their surviving spouse or 

dependents.37

Stakeholders Say There 

Are Financial Incentives to 

Extend Appeals and 

Prolong the Adjudication 

of Claims 

DOL officials also said that mine companies have financial incentives to 

prolong the adjudication of claims. First, according to DOL officials, mine 

companies often skip the initial stage of the claims process altogether and 

do not begin to develop a defense until the hearing before OALJ, which 

may delay a definitive decision. Under the program, mine companies are 

not required to submit evidence during initial claims processing at OWCP, 

and as discussed earlier, any findings or conclusions by OWCP are not 

relevant or binding on the administrative law judge. DOL officials said that 

because some claims lack merit and many claims are abandoned or 

withdrawn, mine companies see no need to develop a defense and submit 

evidence for these cases. Second, according to some administrative law 

judges, when mine companies do submit evidence during appeals, it is 

sometimes submitted after the claimant has first submitted his own 

evidence and just prior to a hearing. Doing so may afford the mine 

companies the opportunity to evaluate and most effectively counter 

claimants’ evidence, according to some administrative law judges and 

claimant attorneys. Some administrative law judges said that this tactic 

may delay the issuance of a decision because judges may allow claimants 

the opportunity to develop the record after the hearing if they did not have 

sufficient time prior to the hearing to address the newly submitted 

evidence. 

 

37DOL officials said that it is not their practice to seek the repayment of interim benefits 

from the surviving family members of deceased miners ultimately denied benefits. 

Page 17 GAO-10-7 Black Lung Benefits Program
 

OWCP officials said that a provision in a 1997 proposed rule would have 

addressed such delays and other concerns, by requiring parties to submit 

all evidence at the initial claim stage.38 According to these officials, this 

proposed provision would have allowed OWCP to make more informed 

decisions up front and avoid some of the protracted and expensive 

appeals.39 The proposal received much criticism during the public 

comment period and was not adopted in the final rule.40 According to DOL 

officials, one concept from this proposal has been implemented through 

an administrative procedure: prior to issuing a decision on a claim, OWCP 

now issues a preliminary assessment concerning the claimant’s eligibility 

for benefits based on the information gathered to that point. DOL officials 

said that this has helped to address mine operator concerns about the 

costs of developing a defense for every claim because many claimants 

withdraw when OWCP’s preliminary assessment does not favor eligibility. 

Some Hearings Are 

Delayed by the Need for 

Judges to Travel to Remote 

Locations and to Grant 

Claimants Additional Time 

to Seek Representation 

Some hearings are delayed because claimants reside in rural and remote 

locations. According to administrative law judges, when claimants live in 

remote locations, hearings are delayed until several cases can be 

scheduled at the same time in one region, which limits lengthy travel 

required of judges.41 According to one Black Lung Clinic official, in some 

cases, scheduling hearings for miners who live in remote locations can 

take more than 2 years. On the other hand, when asked whether video 

technology—such as that employed by the Social Security 

Administration’s Disability Determination Services—might reduce hearing 

delays by eliminating the need to travel, some of DOL’s administrative law 

judges said it might accelerate hearings for miners or their dependents in 

rural and remote settings. 

 

3862 Fed. Reg. 3338 (Jan. 22, 1997). 

39According to DOL, in fiscal year 2008, 43 percent of funds appropriated for administrative 

activities from the Black Lung Disability Trust Fund were provided to the Office of the 

Solicitor, BRB, and OALJ. 

4065 Fed. Reg. 79920 (Dec. 20, 2000), effective January 19, 2001. According to officials, 

criticism centered on the following: (1) mine operators’ costs to develop a defense for 

every claim were expensive and unnecessary, (2) limited opportunities to appeal may have 

violated some due process rights, and (3) unrepresented claimants may have been 

disadvantaged. Some officials at DOL also expressed concern that claims adjusters at 

OWCP may not be appropriately qualified to make decisions about the submission of 

evidence that would have been required under the proposal. 

41To conduct hearings, administrative law judges attempt to travel to locations convenient 

for claimants, typically within 75 miles of a claimant’s residence. 

Page 18 GAO-10-7 Black Lung Benefits Program
 

Hearings can also be delayed because claimants lack legal representation. 

Administrative law judges said that in some cases, the first appearance by 

miners or their dependents at the OALJ hearing is without legal counsel. In 

such cases, administrative law judges said that it is standard practice for 

the judge to ask if the claimant has legal representation or if the claimant 

has sought representation. If a claimant needs more time to obtain legal 

counsel, the judge typically grants a hearing continuance.42 According to 

OALJ, continuances may delay claims adjudication between 5 and 6 

months. Administrative law judges said that it is not uncommon to grant 

one or two continuances to unrepresented claimants seeking counsel. 

Most Claims Are 

Initially Denied, Most 

Often because 

Claimants Cannot 

Meet All Evidentiary 

Requirements 

DOL Denies a Majority of 

Initial Claims and about 

Half of All Subsequent 

Appeals 

Since 2001, most claims have been initially denied; and for 2008, we 

calculated that about half of all appeals resulted in the denial of claimant 

benefits. The OWCP overall denial rate for black lung claims has remained 

constant at around 85 percent or higher in the 8 years since the fiscal year 

2001 changes to the Black Lung Benefits Program regulations. At the initial 

claims level, OWCP denied 87 percent of the 4,416 claims decided in fiscal 

year 2008 (see table 2). There was virtually no difference between the 

denial rates for claims filed against the DOL-managed Black Lung 

Disability Trust Fund (84 percent) and claims filed against mine 

companies (88 percent). At the first level of appeals, OALJ issued 

decisions that resulted in the denial of claimant benefits in more than half, 

or 53 percent, of the 1,367 decisions issued in fiscal year 2008.43 At the 

 

42OALJ also said that continuances are also commonly granted to develop additional 

medical evidence. 

43OALJ awarded claimant benefits in 23 percent of its decisions in fiscal year 2008 and 

remanded 13 percent. The remaining 11 percent of OALJ decisions were either withdrawn 

by parties, dismissed, or involved decisions that were not related to the awarding of 

claimant benefits. 

Page 19 GAO-10-7 Black Lung Benefits Program
 

second level of appeals, BRB decisions resulted in the denial of claimant 

benefits in about half, or 47 percent, of the 737 appeals issued in fiscal year 

2008.44 Because neither OALJ nor BRB systematically track whether their 

decisions result in the award or denial of claimant benefits, we were only 

able to determine their denial rates for 1 year and were not able to 

determine how they have changed over time. 

Table 2: The Number of Black Lung Claims and Appeals Decisions Issued and the 

Percent That Resulted in Denial of Claimant Benefits in Fiscal Year 2008 

DOL agency 

Number of black lung claims 

and appeals decisions issued 

Percent of black lung decisions 

that resulted in the denial 

of claimant benefits 

OWCP 4,416 87 

OALJ 1,367 53 

BRB 737 47 

Source: GAO analysis of Department of Labor data. 

 

44The BRB does not deny or award claims but affirms, reverses, modifies, or vacates the 

OALJ decision to grant or deny benefits to claimants. 

Page 20 GAO-10-7 Black Lung Benefits Program
 

Few Claimants Are Able to 

Prove They Meet All of the 

Program’s Evidentiary 

Requirements 

Few claimants are able to meet all of the program’s evidentiary 

requirements, which are set by law. In order to be eligible for black lung 

benefits, claimants generally must prove they have pneumoconiosis—coalinduced lung disease—that they are totally disabled as a result of it, and 

that the disease is caused by their mine employment. Based on DOL data, 

we calculated that over 60 percent of the claims adjudicated and denied by 

OWCP in fiscal year 2008 and estimated that over half of the claims 

adjudicated and denied by OALJ and BRB were denied because claimants 

could not prove that they had pneumoconiosis or, if they could, that 

pneumoconiosis had caused disability or death.45 Some claimants have 

difficulty proving that their lung disease is pneumoconiosis.46 Although a 

lung X-ray can detect scarring, agency officials report that claimant 

doctors and company physicians may each read the X-ray differently. In 

addition, according to NIOSH scientists, some miners develop a form of 

lung disease associated with long-term exposure to coal mine dust that 

impairs lung function but frequently cannot be detected by X-ray. Agency 

officials and claimant doctors we interviewed said a significant portion of 

black lung claimants who have this form of pneumoconiosis also have a 

history of smoking, which presents another evidentiary problem: while the 

Black Lung Benefits Program regulations require that miners prove coal 

dust is a significant contributing cause of their disability,47 NIOSH officials 

reported that there is no scientific way to assign the proportion of cause to 

either inhalation of coal dust or tobacco smoke. Depending on the 

intensity and duration of exposures to coal dust and tobacco smoke, both 

can play a role in the impairment and disability of a miner. In such cases, 

judges told us that they rely heavily on nonclinical evidence to determine 

whether claimants are eligible for benefits. According to some 

administrative law judges, mining company doctors are usually better 

credentialed and produce lengthier, more sophisticated, and 

comprehensive medical reports and evaluations than claimants’ doctors. 

For example, some claimants’ doctors may only produce DOL’s 4-page 

medical evaluation, while RO doctors will provide medical reports in 

excess of 20 pages supported by various citations from medical journals. 

Coal mine dust can cause a range of lung 

diseases depending on the level of 

exposure. These images, taken from 

autopsies of deceased miners show the 

impact that coal dust can have on the 

lungs. The second image depicts lungs

that have been damaged as a result of 

Simple Coal Workers’ Pneumoconiosis

(CWP). In contrast to the healthy lungs on 

top, the CWP lungs show mild to moderate 

lung scarring that may result in impaired 

lung function. While lung scarring is

apparent in the autopsy image, the ability 

to detect Simple CWP in X-rays may vary 

by physician. 

Lung Diseases Associated with 

Long-Term Coal Mine Dust Exposure 

Healthy Lungs

Source: NIOSH, 2009.

Source: NIOSH, 2009.

Simple Coal Workers’ Pneumoconiosis

 

45We estimated that other claims were denied because claimants were not able to prove 

total disability, were not able to prove coal mine employment, or did not follow procedures 

for preparing claims or submitting evidence. 

46By statute, there is an irrebuttable presumption of total disability due to pneumoconiosis 

if X-rays of a miner’s lungs show a spot or lesion that is greater than 1 centimeter in 

diameter. 30 U.S.C. § 921. 

47See 20 C.F.R. §§ 718.204(c) and 718.201 (2009). 

Page 21 GAO-10-7 Black Lung Benefits Program
 

Claimants who can prove they have pneumoconiosis may nevertheless be 

unable to establish that it is a significantly contributing cause for the 

condition of their lungs, if other medical conditions are present that may 

contribute as well. Agency officials, claimants’ attorneys, and physicians 

with whom we spoke said claimants may also suffer from ailments such as 

heart disease, tuberculosis, or sarcoidosis—impairments which, like 

pneumoconiosis, can diminish a claimant’s lung function. In cases where it 

is difficult to determine the cause of a claimant’s disability, administrative 

law judges must decide whether the claimant’s doctor or the mine 

operator’s doctor has offered the most well-reasoned medical opinion. As 

in the case of smokers with pneumoconiosis, judges told us they rely 

heavily on nonclinical evidence, namely physician credentials and the 

length and comprehensiveness of the evidence presented by the parties. 

In contrast to Simple Coal Workers’ 

Pneumoconiosis (CWP), Advanced CWP, 

as seen in the first image, is generally 

characterized by massive lung scarring and 

lesions, resulting in severely impaired lung 

function. The second image depicts Coal 

Mine-Induced Emphysema, which is

characterized by destruction of respiratory 

tissues, resulting in impaired airflow 

through the lungs and into the bloodstream. 

Emphysema is one type of Chronic 

Obstructive Pulmonary Disease (COPD) 

associated with long-term coal mine 

dust exposure, which includes Chronic 

Bronchitis, among others. 

Lung Diseases Associated with 

Long-Term Coal Mine Dust Exposure 

Advanced Coal Workers’ Pneumoconiosis

Source: NIOSH, 2009.

Source: NIOSH, 2009. 

Coal Mine-Induced Emphysema

Page 22 GAO-10-7 Black Lung Benefits Program
 

Although it can be difficult for some claimants to meet all of the Black 

Lung Benefit Program’s evidentiary standards, there is no settlement 

option, such as an agreement for payment of partial benefits for partial 

disability. Though settlement is prohibited under the current statute,48

some stakeholders told us that a settlement option would increase the 

number of miners who would receive awards and reduce the amount of 

time it takes to resolve black lung claims. Still, others have said that such 

settlements would be incongruent with the fact that the disease is 

progressive. Some DOL officials told us that settlement would cause 

miners to settle for award amounts that would be less than what they 

would be eligible for once the disease progressed. Others noted that if the 

program permitted claimants to be paid through a lump sum settlement, 

instead of the current practice of receiving monthly benefit payments, 

miners might spend their award before they would most need it. 

Some Parties Suggest That 

the Black Lung Program 

Should Provide a 

Settlement Option 

Other state and federal workers’ compensation programs, including the 

Longshore and Harbor Workers’ Compensation Act, do allow claimants to 

settle their claims or to be compensated for partial disability.49 The West 

Virginia state workers’ compensation program, among others, also 

provides the option for claimants to settle their black lung claim for partial 

disability. One claimant with whom we spoke who has been unable to 

resolve his federal black lung claim for 8 years was able to receive 

compensation for partial disability under the West Virginia workers’ 

compensation program while still employed as a coal miner. Although this 

settlement option has been used in other workers’ compensation 

programs, DOL officials—citing the prohibition in the statute—said to 

date, there has been no research done to evaluate the costs and benefits of 

offering settlement for partial disability to black lung claimants. 

 

4830 U.S.C. § 932 (a). 

4933 U.S.C. § 933 (g) (1). 

Page 23 GAO-10-7 Black Lung Benefits Program
 

Coal Miners Face a 

Number of Challenges 

in Pursuing Federal 

Black Lung Benefits, 

Including Finding 

Legal Representation 

and Developing 

Sound Medical 

Evidence 

Although the Program and 

DOL Recognize the 

Importance of Legal 

Representation for Miners, 

DOL Does Not Track, 

Evaluate, and Report on 

Claimants’ Access to Legal 

Representation 

The importance of legal representation for black lung claimants is well 

established. The Black Lung Benefits Act recognizes the importance of 

claimant representation by providing reasonable fees for claimant 

attorneys in the successful prosecution of a claim under the statute.50 DOL 

has recognized that the early involvement of legal representatives in 

claimants’ cases improves the quality of evidence submitted and the 

decision making in all claims for benefits.51 Therefore, DOL issued 

regulations in 2001 that provide for compensation of claimant attorneys 

for all reasonable time, from the outset of a case, if it ends in an award.52 In 

a variety of ways, DOL has also encouraged black lung claimants to seek 

representation for the claims they initially file, as well as the claims they 

appeal.53 For example, DOL’s Web site includes a claimant resource page 

that provides representation guidelines for administrative appeals and 

identifies a number of lawyer referral services, including services with the 

 

50A reasonable attorney fee, subject to department approval, may be collected from the RO 

that is ultimately found liable for the payment of benefits or, in a case in which there is no 

RO who is liable for the payment of benefits, from the Black Lung Disability Trust Fund. 

See 30 U.S.C. § 932(a). (This section of the Black Lung Benefits Act incorporates 33 U.S.C. 

§ 928(a), the attorney fee provision of the Longshore and Harbor Workers’ Compensation 

Act.) 

51DOL regulations state that a representative can be an attorney or a nonattorney. 20 C.F.R. 

§ 725.363 (2009). 

52The regulation states that the fees payable include reasonable fees for necessary services 

performed prior to the creation of the adversarial relationship. 20 C.F.R. § 725.367 (2009). 

53DOL regulations state that OALJ does not have authority to appoint counsel or refer 

claimants to attorneys. 29 C.F.R. § 18.35 (2009). 

Page 24 GAO-10-7 Black Lung Benefits Program
 

American Bar Association and legal aid clinics associated with law schools 

and other nonprofit organizations. On this Web page, OALJ advises 

claimants that DOL adjudications “vary widely in complexity and in many 

instances it may be wise to obtain legal counsel.” Administrative law 

judges also use various means to encourage claimants to seek 

representation. For example, some judges provide information about the 

advantages of representation in the Notice of Hearing, talk directly to 

unrepresented claimants about such advantages at the hearing, or issue a 

special letter to unrepresented claimants indicating that black lung cases 

often involve complicated legal issues and encouraging them to find 

representation. Finally, judges are permitted to grant claimants additional 

time in order for them to secure representation before a hearing.54

While DOL collects some information about claimant representation, it 

does not track, evaluate, or report on claimants’ access to legal 

representation throughout the claims and appeals process. At our request, 

OWCP, OALJ, and BRB provided us with the number of claimants with 

legal representation at each stage of the process based on data captured 

by their systems. However, due to limitations in data collection, these 

numbers were not sufficiently reliable for use in our report. For example, 

at the OWCP level, officials told us that some claimant representation 

information is captured by an automated correspondence system, separate 

from the main data management system, but that the correspondence 

system was not designed to track claimant representation and cannot 

identify types of representatives and at what point in the claims process a 

claimant acquired representation. The data management systems used by 

OALJ and BRB capture claimant representation data, but these data are 

limited by similar factors. For example, OALJ’s system cannot identify 

whether a representative is an attorney or lay representative and at what 

point in the appeals process a claimant acquired representation. In 

addition, BRB officials told us that their data do not include the number of 

all appeals filed without counsel because they do not track legal 

representation for appeals filed by nonprofit agencies on the behalf of 

black lung claimants. Further, OWCP, OALJ, and BRB officials told us that 

they do not report any of the representation information they collect or 

use it to measure performance. However, a number of DOL officials told 

 

54According to BRB, when an appeal is filed by a claimant without an attorney to BRB (a 

pro se appeal), the Board provides a complete substantial evidence review on all issues of 

fact and law pertinent to the administrative law judge’s decision. In many cases, this results 

in an administrative law judge’s denial of benefits being remanded for reconsideration of 

whether the claimant is entitled to benefits. 

Page 25 GAO-10-7 Black Lung Benefits Program
 

us that finding representation is a significant challenge for many 

claimants. For example, program officials cited claimants’ lack of 

representation, particularly in the early stages of a claim, as a significant 

barrier to successful claims. OALJ officials told us that few attorneys will 

represent black lung claimants and that lack of legal representation limits 

OALJ’s ability to process cases quickly. 

Disincentives for Lawyers 

to Take Claimants’ Cases 

and Scarce Nonprofit 

Resources Impede 

Claimants’ Ability to 

Secure Legal 

Representation 

There are few financial incentives for lawyers to take black lung claimants’ 

cases, and claimants generally do not have the financial resources to cover 

the costs associated with developing the evidence needed to support and 

defend their claims. According to DOL officials, attorneys are not inclined 

to take claimants’ cases due to a low probability of success. As noted 

previously, only 13 percent of all claims were initially approved by OWCP 

in fiscal year 2008. Moreover, while DOL has no official data on the final 

approval rate after all appeals are exhausted, black lung experts suggested 

that the final award rate is about half of the initial award rate. Other 

disincentives DOL officials and claimant attorneys cited are that the 

process can be lengthy and costly. For example, one attorney told us that 

it has taken as long as 15 years from the start of a black lung case to 

receive compensation for working on it.55 Among the significant legal costs 

that claimant attorneys said they incur with black lung cases is the time 

spent preparing legal briefs and expenses associated with evidence 

development, such as preparing medical experts’ reports. Because 

claimants lack financial resources for evidence development and DOL’s 

payment of claimant attorneys’ fees is contingent on the success of cases, 

claimant attorneys bear much of the legal costs during the litigation of 

claimants’ cases.56 In Black Lung Benefits Act cases, a claimant may not be 

charged a fee by an attorney unless black lung benefits are awarded.57

While no precise estimates of legal costs for claimant cases were available, 

based on GAO’s analysis of one law firm’s estimated total legal costs for 

black lung cases, cases that took roughly between 2 to 4 years to resolve 

averaged about $18,000 in total legal costs. This firm also indicated that it 

has five unresolved black lung cases that have been active 7 years or more, 

 

55DOL regulations permit interest to be assessed for attorney’s fees, computed from the 

date on which the attorney fee was awarded through the date the RO paid the attorney’s 

fee. 20 C.F.R. § 725.608(c) (2009). 

56If benefits are awarded, attorney’s fees are paid by the mine company or the Black Lung 

Disability Trust Fund. 20 C.F.R. §725.366 (2009). 

5720 C.F.R. §725.365 (2009). 

Page 26 GAO-10-7 Black Lung Benefits Program
 

with an average cost of at least $70,000 in total accrued legal costs.58 In 

contrast to reports of limited representation available to claimants, DOL 

officials and representatives from claimant groups and mine companies 

said that mine operators tend to have greater resources to develop black 

lung evidence. 

Various nonprofit organizations offer assistance to claimants, but their 

capacity to meet the legal needs of black lung claimants is limited. A 

prominent nonprofit legal resource for claimants is a black lung legal 

clinic operated by the law school at Washington and Lee University in 

Virginia. Currently, the clinic has 42 active black lung cases, and its 

operation relies largely on the voluntary efforts of law professors and their 

students. Officials told us that the clinic does not have the resources to 

provide legal assistance to a larger number of black lung claimants. 

Another source of nonprofit legal assistance for claimants is the federally 

supported Black Lung Clinics program, which primarily provides medical 

services. Serving 14 states, these clinics are supported by HRSA grants; 

they provide miners with a number of services related to the diagnosis and 

treatment of black lung disease. Some clinics are authorized by DOL to 

conduct diagnostic testing for the Black Lung Benefits Program, and 

clinics are encouraged by the Black Lung Clinics program to assist miners 

with their claims through benefit counseling and legal referral. According 

to program officials, four clinics receiving HRSA grants also provide 

claimants with free lay representation.59 DOL administrative law judges 

told us that some lay representatives have provided miners with effective 

support and guidance by helping them understand the claims process and 

properly complete the required documentation on time. However, they 

noted that lay representatives are better suited to helping claimants with 

initial claims than with appeals, which they said generally requires formal 

legal training. At one time, the UMWA offered legal representation for 

black lung claimants, but UMWA representatives said currently that they 

can only refer claimants to outside legal representatives. 

 

58We did not independently assess the reliability of these cost estimates. 

59HRSA officials could not provide us with information about grantee expenditures on lay 

representation because the program does not collect this information. 

Page 27 GAO-10-7 Black Lung Benefits Program
 

DOL administrative law judges and claimant advocates reported that 

doctors who have been approved by DOL to conduct diagnostic tests and 

provide pulmonary evaluations do not always submit complete medical 

documentation.60 DOL judges told us that doctors’ medical opinions are a 

key element of evidence in claims adjudication and indicated that most of 

the opinions submitted by DOL’s approved doctors did not provide 

claimants with sound evidentiary support for their cases. In particular, 

DOL judges told us that doctors’ written opinions frequently lack clarity 

and specificity on the causal factors of disease and do not adequately 

explain their reasons for their conclusions, if at all. 

Evidentiary Documents 

Submitted by DOLApproved Doctors Do Not 

Always Provide Sound or 

Thorough Support for 

Miner Claims 

While DOL has made efforts through its national and district offices to 

educate its approved diagnostic providers about documenting medical 

evidence for black lung claimants, some claimant doctors and 

representatives told us that the program does not consistently provide 

doctors with clear guidance for effectively and completely documenting 

their medical opinions, particularly with respect to describing the causes 

of disease and explaining the basis of their medical conclusions. In 

particular, one doctor with experience as a DOL-approved provider told us 

that doctors new to DOL’s approved list are often unclear about how to 

properly document their medical opinions on DOL’s medical evaluation 

form.61

While DOL provides supplemental guidelines for doing this, he suggested 

that many DOL- approved physicians are not accustomed to the 

comprehensive, narrative format required by DOL.62 Program officials told 

us that the comprehensive narrative format is necessary and preferable 

over forms that solicit discrete responses because of the complexity of 

black lung disease and the importance of good reasoning in developing 

sound medical evidence. However, according to one doctor, the narrative 

portion of the pulmonary evaluation form is often left incomplete or 

poorly developed because of its open-ended structure. In an attempt to 

 

60To ensure that claimants have access to physicians who are well qualified to conduct 

black lung diagnostic testing and complete pulmonary evaluations, DOL issued regulations 

in 2001 requiring OWCP to create and maintain an official, publicly available list of 

department-approved medical providers. See 20 C.F.R. § 725.406 (2009). 

61For DOL’s medical evaluation form, see CM-988: Medical History and Examination for 

Coal Mine Workers’ Pneumoconiosis (OMB No.: 1215-0090). 

62For DOL’s supplemental guidelines, see CM-988A: Instructions for Black Lung Physical 

Examination. 

Page 28 GAO-10-7 Black Lung Benefits Program
 

improve the clarity and completeness of medical evaluations, as well as 

reduce the need for doctor follow-up, one DOL district office developed a 

supplemental questionnaire for soliciting explicit information from 

doctors and attached it to DOL’s official medical form. According to 

officials at this district office, the supplemental form effectively supported 

their efforts in improving the quality of medical evidence documented by 

approved doctors. However, DOL’s national office required the district 

office to discontinue using this supplement as a routine form because it 

had not been authorized through the Office of Management and Budget. 

In order to determine the presence or 

absence of black lung disease and 

the degree of associated disability, 

miner-claimants for federal black lung 

benefits are required to undergo a series

of diagnostic tests, including a chest 

X-ray, pulmonary function study (breathing 

tests), arterial blood gas study, and a

physical examination. Diagnostic tests are 

conducted on miners by DOL-approved 

physicians, and if contested, by physicians

contracted by mine companies or their 

insurers. The clinical information reported 

from diagnostic testing generally 

constitutes a significant part of the parties’ 

medical evidence in black lung cases. 

Diagnostic Testing for Black Lung

Disease and Associated Disability

Source: Cook County Health and Hospitals System.

Source: Cook County Health and Hospitals System.

The extent to which DOL’s district offices hold approved doctors 

accountable for the quality of submitted medical evidence is unclear 

because DOL does not track whether and how often district offices need 

to follow-up with doctors or withhold payment for inadequate medical 

documentation. DOL can also remove a doctor from the approved list for 

poor performance, including poor quality of documentation and delays in 

submitting reports. Since the creation of DOL’s approved provider list in 

2001, OWCP has removed four doctors and reinstated one. However, DOL 

officials told us they are reluctant to remove doctors because of 

challenges in maintaining an adequate number who are qualified to 

conduct diagnostic testing for the program. For example, in identifying 

recruiting challenges, DOL officials said that some doctors do not want to 

expose themselves to cross-examination by attorneys for the mine 

employers or their insurers. They also noted that certain geographic areas 

present difficulties for finding enough qualified doctors suitable for the 

approved list. Consequently, OWCP may use more liberal standards for 

evaluating the qualifications of doctors in these areas to ensure that 

claimants have access to and, where possible, a choice between approved 

doctors. Because of recruiting challenges, DOL officials said that they 

prefer to work with approved doctors to improve the quality of their 

documentation, rather than remove them from the approved list. 

Page 29 GAO-10-7 Black Lung Benefits Program
 

Medical experts with whom we spoke told us that some practices of 

conducting blood gas tests, which provide evidence for claimant and RO 

parties, may contribute to inaccurate disability readings for claimants.63

Blood gas tests are required by regulation and conducted with the miner at 

rest and, if medically indicated, during exercise.64 According to one 

medical expert, inaccurate readings can result from insufficient intensity 

or duration of exercise, poorly executed manual blood draw, prolonged 

delay between blood draw and sample analysis, and improperly calibrated 

diagnostic equipment, among others things. DOL officials acknowledged 

that differences in how doctors conduct blood gas tests may influence test 

results. In particular, they stated that using a catheter is more reliable and, 

therefore, preferable to a single stick or to manually drawing blood with a 

syringe. However, they explained that diagnostic testing facilities in some 

areas may not have the capacity to carry out blood draws using indwelling 

catheters. They also said that, generally, they are not able to monitor or 

control how doctors conduct blood gas tests. DOL validates the results of 

all blood gas tests conducted by its approved doctors. In contrast, officials 

said they do not have the authority to validate or require validation of 

results of tests conducted by mine operator doctors. 

Blood Gas Testing 

Practices May Contribute 

to Inaccurate Disability 

Readings for Claimants 

Claimant advocates and representatives from black lung clinics we 

interviewed alleged that some doctors working for mine companies or 

their insurers conduct blood gas tests in ways that boost claimants’ blood 

oxygen levels, thereby lowering their disability readings. Examples they 

provided include failing to record the pulse rate during the blood draw, not 

icing blood samples, shaking blood samples to aerate them prior to 

analysis, and allowing significant delays between drawing and analyzing 

blood. Program officials acknowledged that they are aware of such 

allegations but said they have no way to test the veracity of these claims or 

determine the incidence of such practices. Currently, DOL has no system 

for logging and tracking complaints it receives from parties to black lung 

cases concerning testing practices of either DOL-approved or RO-hired 

doctors. Mine industry representatives with whom we spoke said they are 

not aware of complaints or any cases of manipulation. 

 

63Blood gas tests measure the ability of the lungs to oxygenate blood and are an indication 

of the level of a claimant’s impairment. 

6420 C.F.R. § 718.105 (2009). 

Page 30 GAO-10-7 Black Lung Benefits Program
 

The Black Lung Benefits Program remains a significant source of black 

lung compensation for the nation’s coal miners, but there are a number of 

administrative and structural problems that could impede the ability of 

eligible miners to pursue claims. First, the high rate of appeals by both 

claimants and mine operators and the high number of remands by OALJ 

and BRB all prolong the resolution of claims. Although the cause for these 

rates is not entirely clear, it is evident that the program’s structure can 

create financial incentives for both miners and mine operators to continue 

to file or extend appeals. Without ways to streamline or speed the appeals 

process, expedite hearings for remote areas, and avoid remands, many 

claims will likely continue to go unresolved for years. Yet, because DOL 

does not track all claims from initial application through appeals, the 

agency cannot begin to accurately assess the scope of this problem or 

develop strategies to improve it. 

Conclusions 

In recent years, few claimants have been able to meet all of the program’s 

evidentiary requirements, and the current state of black lung science 

makes it difficult for claimants to meet certain requirements. Without a 

thorough examination of the ability of claimants to meet evidentiary 

standards or exploring alternatives to resolving claims, such as settlement, 

claimants with meritorious claims may not receive benefits. 

Moreover, many claimants are not equipped with the medical and legal 

resources they need to develop evidence that will meet the program’s 

requirements. While miners must be able to develop sound evidentiary 

support for their black lung cases, the medical evidence prepared by DOLapproved doctors does not consistently provide this support, and blood 

gas testing practices may contribute to inaccurate disability test readings. 

In the absence of complete and reliable medical evidence for miners, there 

is a greater chance that the judges who review the cases will be presented 

with medical evidence that is insufficient. Similarly, without better options 

for legal representation, significant numbers of claimants proceed with 

their claims through a complex and potentially long administrative process 

without the resources DOL officials and black lung experts note are 

important to developing evidence and supporting their claims. Yet, DOL 

does not collect data that would offer a complete assessment of the scope 

of this problem. Absent efforts to re-examine these structural issues and 

remedy administrative problems, claimants with meritorious claims will go 

without benefits, and delays in the resolution of claims will continue. 

Page 31 GAO-10-7 Black Lung Benefits Program
 

To improve the effectiveness of the Black Lung Benefits Program, we 

recommend that the Secretary of Labor undertake the following seven 

actions: 

Recommendations for 

Executive Action 

1. Take steps to reduce the number of black lung cases remanded from 

BRB to OALJ by convening a group to determine the causes of these 

remands and develop solutions for reducing their incidence. 

2. Obtain summary information on how long it takes to resolve claims 

using its current automated system to routinely track cases through 

the entire adjudication process and develop associated performance 

measures. 

3. Consider shortening the time required to schedule hearings for black 

lung cases by examining the feasibility of using video teleconferencing 

technology to streamline the scheduling of hearings in remote areas. 

4. Based on feedback from relevant black lung medical stakeholders, 

including approved diagnostic providers and Black Lung Clinics, 

develop options for improving how doctors’ opinions are documented 

on DOL’s medical evaluation form. 

5. Evaluate and report on claimant access to legal and lay representation 

by implementing changes to the data management systems of OWCP, 

OALJ, and BRB that will permit accurate data about claimant 

representation throughout the claims and appeals process. 

6. Evaluate and address blood gas testing practices that may contribute 

to inaccurate disability test readings by implementing a feedback 

mechanism to record and track complaints from federal black lung 

claims stakeholders about testing practices. 

7. Examine the following issues and evaluate the potential for proposing 

structural changes to the program to Congress: 

• options for enhancing incentives for attorneys and lay 

representatives to take claimants’ cases; areas that could be 

explored include alternate pay structures for attorneys and an 

examination of federal support for lay representation; 

• the costs and benefits of allowing compensation for partial 

disability and settlement of claims; 

Page 32 GAO-10-7 Black Lung Benefits Program
 

• the clinical limitations in documenting evidence to prove 

pneumoconiosis and total disability; and 

• new and previous proposals to reduce the amount of time it takes to 

resolve claims and appeals, including requiring complete 

evidentiary development at the primary claims processing phase 

and limiting the need for appeals. 

We provided a draft of this report to DOL for review and comment. The 

department provided written comments with OWCP, OALJ, and BRB 

responding to our report in three separate letters. These letters are 

reproduced in appendix II. In its comments, DOL generally agreed with six 

of our recommendations, and disagreed with one recommendation. DOL 

agreed to take steps to reduce the number of black lung cases remanded 

from BRB to OALJ by convening a group to determine the causes of these 

remands and develop solutions for reducing their incidence, though BRB 

expressed concern that the creation of an “independent panel” would be 

inappropriate. In order to respond to BRB’s concern, we modified the 

language from “independent panel” to “group.” We recognize BRB’s 

judicial independence and authority and the need for the department to 

determine the reasons for remands in order to develop solutions to reduce 

them. The intent of our recommendation was not to assess or evaluate 

BRB’s performance. 

Agency Comments 

and Our Evaluation 

The department generally disagreed with our recommendation to obtain 

information on how long it takes to resolve claims by developing a 

mechanism to track cases through the entire adjudication process and 

develop associated performance measures. OALJ and OWCP indicated in 

their individual responses that the current system does track the status of 

each claim and that the system is currently capable of tracking black lung 

claims throughout the appeals process. However, DOL does not currently 

track how long a claim remains in the adjudications process as one 

indicator of performance. We believe that DOL should leverage the 

capability of its current automated systems for routinely tracking such 

information and develop associated performance measures. Accordingly, 

we modified the wording of our recommendation to clarify this point. 

In its response, OWCP provided its own analysis of the time it takes to 

resolve black lung claims. However, we were unable to verify the accuracy 

of OWCP’s analysis because DOL did not provide us with the data or the 

calculations used to derive this figure. Moreover, when we carried out our 

analysis of time to resolve claims, OWCP stressed the difficulty of 

conducting such an analysis and provided us with data, some of which we 

found unreliable. It was because of this difficulty and the lack of reliable 

Page 33 GAO-10-7 Black Lung Benefits Program
 

data that we focused our analysis on the only subset of data for which we 

could reliably determine claim resolution times—those cases that were 

ultimately awarded benefits. It also made sense to examine these cases 

because: (1) they were the most likely to be litigated, (2) were, in our 

opinion, the best available proxy for how long a litigated claim could 

remain in the system and (3) because other types of claims, such as Trust 

Fund claims, are unlikely to be appealed. OWCP said it provided its 

analysis because ours used data that represented approximately 2 percent 

of black lung claims that were filed between 2001 and 2008, according to 

its data. OWCP did not provide us with information about how it derived 

the 2 percent figure, so we could not verify its accuracy. However, given 

that few miners who bring a claim prevail, and we examined those where a 

miner was awarded benefits, we recognize that the cases we examined 

represent a small part of all claims. In the report, we made clear that these 

cases were only a small subset of all cases and that processing times for 

these cases could not be generalized. Moreover, even though the claims 

we examined represent a minority of claims filed, they are part of the 

constituency that the Act sought to ensure would have recourse through 

the system. OWCP officials told us that they did not believe that a global 

measure of timeliness would improve its ability to measure performance 

or provide any other benefit. We disagree and believe that such a measure 

would add transparency that might ultimately improve DOL’s processes. 

 

The department concurred with our recommendation to consider 

shortening the time required to schedule OALJ hearings. The OALJ 

supported the idea that video teleconferencing hearing technology could 

assist in expediting hearings in remote locations and used their comments 

to begin considering issues related to acquiring such technology. 

DOL also agreed with our recommendation to develop options for 

improving how doctors’ opinions are documented. Though OWCP agreed 

with our recommendation, in their comments agency officials emphasized 

that any revisions to the form should include a “well-reasoned narrative” 

and allow less room for legal challenge from parties, not more. However, 

we believe that it is essential for DOL to collect and consider feedback 

from stakeholders in their revisions to the form. 

In response to our recommendation to collect more specific data for 

evaluating claimant access to legal and lay representation, DOL agreed to 

enhance their existing systems to begin to track when in the process a 

claimant is represented and whether the claimant is represented by an 

attorney or lay representative. OALJ, in its individual comments, disagreed 

with us on the extent to which claimant representation data is currently 

being captured by OALJ. However, we still maintain that the data provided 

Page 34 GAO-10-7 Black Lung Benefits Program
 

by OALJ was not sufficiently reliable and that system enhancements—

including the type of representation a claimant secured and at what point 

a claimant received that representation (e.g., 1 month, 4 months, or 1 year 

after an appeal)—are required for DOL to develop a more accurate 

assessment of the level of claimant access to representation. 

DOL also stated that it would expand its existing medical provider 

database to include records of complaints in response to our 

recommendation to implement a feedback mechanism to record and track 

complaints from black lung program stakeholders about testing practices. 

Though they generally agreed with our recommendation, OWCP expressed 

concern that an increase in complaints could discourage even good 

doctors from remaining on DOL’s list of approved medical providers. 

However, the purpose of our recommendation is not to penalize good 

doctors, but for DOL to begin to track complaints so that the agency can 

begin to understand the extent to which disability testing errors occur 

with DOL-approved doctors as well as mine company-hired doctors. 

DOL also agreed with our recommendation to evaluate the potential for 

proposing structural changes to the program to Congress. In response to 

our recommendation, both OWCP and OALJ used their comments to begin 

an examination of potential options for consideration for legislative 

changes. DOL also submitted technical changes to a draft of the report, 

which we incorporated into the report as appropriate. 

We are sending copies of this report to the Secretary of Labor, relevant 

congressional committees, and other interested parties. In addition, the 

report will be available at no charge on GAO’s Web site at 

http://www.gao.gov. 

Page 35 GAO-10-7 Black Lung Benefits Program
 

If you or your staff have any questions about this report, please contact me 

at (202) 512-7215 or sherrilla@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on last page of 

this report. GAO staff who made key contributions to this report are listed 

in appendix III. 

Sincerely yours, 

Andrew Sherrill 

Director, Education, Workforce, 

 and Income Security Issues 

Page 36 GAO-10-7 Black Lung Benefits Program
Appendix I: Objectives, Scope, and 

Methodology 

Page 37 GAO-10-7 

Appendix I: Objectives, Scope, and 

Methodology 

To gain insight in to the administration of the Black Lung Benefits 

Program, we examined (1) how long it takes to process and resolve black 

lung benefits claims; (2) at what rate and for what reasons black lung 

claims and appeals are denied by the Department of Labor (DOL); and (3) 

what barriers, if any, confront miners or their survivors in pursuing their 

claims. 

To determine how long it takes to process black lung benefits claims, we 

collected data from the Office of Workers’ Compensation Programs 

(OWCP) Automated Support Package claims tracking system, Office of 

Administrative Law Judges (OALJ) Case Tracking System, and the Benefits 

Review Board (BRB) Prime Appeals Tracking System. We assessed the 

reliability of OWCP, OALJ, and BRB data by (1) performing electronic 

testing of required data elements, (2) reviewing existing information about 

the data and the system that produced them, and (3) interviewing agency 

officials knowledgeable about the data. We also obtained processing data 

from performance reports from each of the three agencies. We determined 

that the data were sufficiently reliable for the purposes of this report. To 

establish criteria, the team compared current black lung claims and 

appeals processing times to the program’s past performance and to agency 

and Office of Management and Budget performance goals. In addition to 

conducting data analysis, the team conducted interviews with officials 

from OWCP, OALJ, and BRB. 

To determine how long claims remain in the claims and appeals process, 

we collected data from the OWCP Automated Support Package claims 

tracking system. However, DOL does not track how long all claims remain 

in the claims and appeals process. DOL officials cited three primary 

reasons for not doing so: each body of the program maintains 

independence and does not share similar administrative processes or 

computer systems; OWCP’s claimant tracking system was designed, in 

part, to ensure that claimants are paid, not to determine how long claims 

remain in the process; and determining how long claims remain in the 

claims and appeals process can be challenging because it is difficult to 

determine what constitutes a claims resolution. For these reasons, we 

were only able to determine how long claims persisted in the claims and 

appeals process for one subset of claimants: miners for whom a 

 Black Lung Benefits Program 
Appendix I: Objectives, Scope, and 

Methodology 

responsible mine operator (RO) ultimately paid benefits.1 Although DOL 

provided data on other claimants, such as miners’ widows who were 

awarded benefits, the data were not sufficiently reliable to determine the 

time to resolve these claims. We attempted to determine if newer claims 

were resolved at different rates than older claims and how two major 

regulatory changes to the program instituted in 1981 and 2001 affected 

claim resolution times.2

 However, our report focused on claims filed 

between January 19, 2001, and December 31, 2008, because DOL officials 

said that these claims more accurately reflected how long claims persist in 

the current claims and appeals process. We determined the time that 

claims persisted in the process by measuring the date of the initial claim 

application to the date when a RO agreed to pay benefits.3

 Our 

examination assessed two cohorts: 3,073 claims filed between January 2, 

1982, and January 19, 2001, and 763 claims filed between January 20, 2001, 

and December 31, 2008. However, many claims filed between 2001 and 

2008 are still in the claims and appeals process and hence could not be 

measured. Therefore, the time calculated to resolve these newer claims 

may not be fully representative of the time necessary to resolve the claims 

and appeals process. 

To determine the rates at which black lung claims and appeals are denied 

by DOL, we collected case tracking data from OWCP, OALJ, and BRB. 

OWCP was able to provide us with data tracking the number of denials, 

and we used these data to determine the OWCP denial rate. OALJ and BRB 

do not keep such data. To determine the OALJ and BRB denial rates, we 

reviewed all fiscal year 2008 OALJ and BRB case documents from a list 

generated from the agencies’ respective case tracking systems. We 

calculated the number of denials and the total number of cases and then 

 

1

Given the challenges noted above, we did not attempt to determine how long claims that 

were denied remained in the process, even though they may represent a significant 

proportion of claims. We also did not focus on claims where a miner was awarded benefits 

from the Black Lung Disability Trust Fund because, according to officials, many of these 

claims are awarded at OWCP, and it is unlikely that these awards would be appealed. 

2

45 Fed. Reg. 13678 (Feb. 29, 1980) and 65 Fed. Reg. 79920 (Dec. 20, 2000), respectively. 

3

Claims resolved in 1 year or less included 138 claims that recorded “zero” as the number of 

days in which a RO agreed to pay benefits. DOL officials said that this is an artifact of their 

claims process. Specifically, in some cases, a mine company agrees to pay shortly before or 

after OWCP’s initial decision, and for administrative reasons, a zero is recorded. However, 

for 24 of these claims, the number of days in which a RO agreed to pay benefits appeared 

unreliable (e.g., when an agreement to pay was dated several years prior to the claim 

application date). These claims were not omitted from our analysis. 

Page 38 GAO-10-7 Black Lung Benefits Program
Appendix I: Objectives, Scope, and 

Methodology 

computed a denial rate. To determine the reasons that black lung claims 

were denied, we collected data from OWCP’s case tracking system that 

captures the reasons for denials. Neither OALJ nor BRB track the reasons 

why appeals are denied; therefore, to establish the reasons why black lung 

appeals were denied, we selected random probability samples of all black 

lung OALJ and BRB appeals cases decided and denied in fiscal year 2008, 

recorded the results of this analysis into a data collection instrument, and 

projected the results onto the population. We sampled 85 cases for OALJ 

and 76 cases for BRB. All percentage estimates in this report from these 

samples have a margin of error of plus or minus 10 percentage points or 

less at the 95 percent confidence level, unless otherwise noted. In addition 

to our data analysis, the team also conducted interviews with officials 

from OWCP, OALJ, BRB, and the National Institute for Occupational 

Safety and Health (NIOSH). 

To understand the barriers that claimants face in pursuing federal black 

lung benefits, we conducted interviews with key officials and experts at 

DOL and other relevant federal agencies, representatives with national, 

regional, and local organizations that focus on issues or provide support 

services related to black lung disease and associated disability, as well as 

local stakeholders who are involved in federal black lung claims on behalf 

of miner-claimants. At DOL, we interviewed officials with OWCP, OALJ, 

and BRB and officials and experts with NIOSH, the Centers for Disease 

Control and Prevention, and the Health Resources and Services 

Administration. We interviewed representatives from national 

organizations, including the National Mining Association, the United Mine 

Workers of America, and the National Coalition of Black Lung and 

Respiratory Disease Clinics. At the regional and local levels, we 

interviewed representatives of federal grant-supported Black Lung Clinics, 

Washington and Lee University’s black lung legal clinic, as well as minerclaimants and a range of local black lung stakeholders, including doctors, 

outreach workers, lawyers, and lay representatives. 

In our interviews, we collected information about factors that facilitate 

and hinder miners’ pursuit of federal black lung benefits, including the 

availability and adequacy of relevant medical and legal services to miners. 

Our interviews with DOL officials specifically focused on the department’s 

policies, procedures, and guidance for providing or assisting claimants 

with identifying such services, as well as their views on the effectiveness 

of such services in assisting claimants to develop sound evidence for their 

cases. Our interviews with miner-claimants and local black lung 

stakeholders, including Black Lung Clinic personnel, were organized as 

site visits to southern West Virginia and eastern Kentucky. These states 

Page 39 GAO-10-7 Black Lung Benefits Program
Appendix I: Objectives, Scope, and 

Methodology 

and regions were selected because they have (1) high levels of miner death 

related to black lung disease,4

 (2) a large volume of federal black lung 

claims,5

 and (3) estimates of black lung-related resources and services.6

The site visits provided valuable information about the challenges miners 

face in pursuing federal black lung benefits from the perspective of 

claimants, as well as local black lung stakeholders who have worked 

closely with claimants. In addition, we reviewed relevant federal statutes, 

regulations, administrative cases, and court cases. 

We conducted this performance audit from October 2008 to October 2009 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient and appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. 

 

4

Based on 2009 data derived from NIOSH’s National Occupational Respiratory Mortality 

System. 

5

Based on 2009 data derived from OWCP. 

6

Based on the opinions of national experts and federal agency officials. 

Page 40 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 41 GAO-10-7 

Appendix II: Comments from the Department 

of Labor 

 Black Lung Benefits Program 
Appendix II: Comments from the Department 

of Labor 

Page 42 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 43 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 44 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 45 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 46 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 47 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 48 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 49 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 50 GAO-10-7 Black Lung Benefits Program
Appendix II: Comments from the Department 

of Labor 

Page 51 GAO-10-7 Black Lung Benefits Program
Appendix III: GAO

A

 Contact and Staff 

cknowledgments 

Page 52 GAO-10-7 

Appendix III: GAO Contact and Staff 

Acknowledgments 

Andrew Sherrill, (202) 512-7215 or sherrilla@gao.gov

Patrick Dibattista (Assistant Director) and Michelle Bracy (analyst-incharge) managed all aspects of the assignment. Edward Bodine, 

Christopher Lyons, and Brenda Muñoz made significant contributions to 

this report, in all aspects of the work. In addition, James Ashley, Cynthia 

Grant, and Jean McSween provided technical support in design and 

methodology and statistical analysis; Doreen Feldman and Roger Thomas 

provided legal support; James Bennett and Susan Bernstein assisted in the 

message and report development; and Jeff Miller assisted with quality 

assurance. 

 Black Lung Benefits Program 

GAO Contact 

Acknowledgments 

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