Material contained in this publication is in 

the public domain and may be reproduced, 

fully or partially, without permission of 

the Federal Government. Source credit is 

requested but is not required. Permission is 

required only to reproduce any copyrighted 

material contained herein.

This material will be made available to 

individuals upon request.

(202)693-0031

Internet address: 

www.dol.gov/owcp
OWCP

Submitted to Congress 2010

U.S. Department of Labor

Office of Workers’ Compensation Programs

Annual Report to Congress FY 2008



Page

Director’s Message 2

Federal Employees’ Compensation Act 5

Black Lung Benefits Act 15

Longshore and Harbor Workers’ Compensation Act 29

Energy Employees Occupational Illness Compensation Program Act 41

Appendix 55

Office Directory 80

Contents
2

Fiscal Year (FY) 2008 was another very 

productive and positive year for the Office of 

Workers’ Compensation Programs (OWCP). 

The four OWCP programs paid out a total of 

$4 billion in compensation and benefits while 

meeting nine of their ten key performance 

goals.

The Federal Employees’ 

Compensation (FEC) program met all five 

of its Government Performance Results 

Act (GPRA) targets, including the very 

difficult goal of lowering Postal Service lost 

production days. FEC continued to enhance 

its integrated claims management/payment 

system (iFECS), and as a result increased the 

timeliness of both the claims adjudication 

and compensation payment processes. 

In addition, FEC enhanced the Agency 

Query System to provide for the electronic 

submission of claims and expanded access 

to its Claimant Query System, doubling the 

number of Federal employees that have 

access to their claims online. All of these 

improvements had a direct impact on the 

continued success of the Safety, Health, and 

Return-to-Employment (SHARE) initiative, as 

all four of the Federal government-as-a-whole 

goals were achieved in SHARE’s fifth year 

of operation, including both the continued 

improvement in the filing of injury notices, 

with over 77 percent of non-postal cases filed 

in a timely manner, and the reduction of lost 

production days.

The Longshore program continued 

to successfully manage the large workload 

created by incoming Defense Base Act (DBA) 

cases, with over 11,000 DBA cases reported 

and filed during the year. To address 

this continued high volume, the program 

redistributed the DBA case workload among 

Director’s 

Message
3

all its district offices in FY 2008. While the 

program continued to exceed its GPRA 

goal to resolve disputed issues in contested 

cases, a revised baseline was developed for 

this measure and new performance goals to 

track and measure benefit facilitation and 

rehabilitation and job placement services 

were added to drive improvements in 

performance in these areas.

The Black Lung program provided 

its usual excellent customer service in the 

management and delivery of benefits while 

continuing to exceed its goal for claims 

processing timeliness, lowering its average 

days to reach claim decisions by 8.5 percent 

to 205 days. Culminating many years of 

effort, the Black Lung Disability Trust Fund 

was placed on the road to eventual solvency 

with the enactment into law of most of the 

program’s long-proposed refinancing plan 

during the first few days of FY 2009.

The Energy Employees Occupational 

Illness Compensation program continued to 

receive and process a substantial number of 

new claims while at the same time continuing 

to work off the backlog stemming from the 

transfer of more than 25,000 cases with the 

creation of Part E and the requirement to 

re-open many cases due to changes in the 

dose reconstruction methodology. For FY 

2008, the program paid out over $1 billion in 

compensation and medical benefits under 

Parts B and E, an all-time high. Outreach 

activities were expanded to offer new and 

improved services for existing and potential 

claimants, including tasking the network 

of Resource Centers to assist claimants 

with resolving medical billing issues and 

encouraging medical providers to provide 

services to program beneficiaries. The Energy 

program’s three GPRA case processing 

timeliness goals were achieved during the 

year.

The delivery of these positive and 

crucial services to the four programs’ tens 

of thousands of deserving customers was 

accomplished through the energy and 

dedication of the entire OWCP staff. The 

staff’s commitment to providing quality 

service, and their ongoing efforts to 

continually improve the accuracy, timeliness 

and effectiveness of that service, are the 

foundation of OWCP’s success.

Shelby Hallmark

Director, Office of Workers’ Compensation Programs

5

Federal Employees’ Compensation Act

Introduction

In 1916, President Wilson signed the first comprehensive law protecting 

Federal workers from the effects of work injuries. Amended several times, 

the Federal Employees’ Compensation Act (FECA) now provides workers’ 

compensation coverage to approximately 2.7 million Federal workers. The 
6

FECA also provides coverage to Peace Corps and VISTA volunteers, Federal petit 

and grand jurors, volunteer members of the Civil Air Patrol, Reserve Officer Training 

Corps Cadets, Job Corps, Youth Conservation Corps enrollees, and non-Federal law 

enforcement officers when injured under certain circumstances involving crimes 

against the United States.

For over 90 years, the Federal Employees’ Compensation (FEC) program has 

continuously evolved to meet its commitment to high quality service to employees 

and Federal agencies, while minimizing the human, social and financial costs of workrelated injuries.

Benefits and Services

The primary goal of the FEC program is to assist 

Federal employees who have sustained workrelated injuries or disease by providing financial 

and medical benefits as well as help in returning 

to work. FECA benefits include payment for 

all reasonable and necessary medical treatment 

for work-related injury or disease. In timelyfiled traumatic injury claims, the FECA requires 

the employer to continue the injured worker’s 

regular pay during the first 45 calendar days 

of disability. If the disability continues after 45 

calendar days, or in cases of occupational disease, 

the FEC program will make payments to replace 

lost income. Compensation for wage loss is paid 

at two-thirds of the employee’s salary if there are 

no dependents, or three-fourths if there is at least 

one dependent. The FECA provides a monetary 

award to injured workers for permanent 

impairment of limbs and other parts of the body 

and provides benefits to survivors in the event of 

work-related death. Training and job placement 

assistance is available to help injured workers 

return to gainful employment.

In Fiscal Year (FY) 2008, the FEC program 

provided 254,000 workers and survivors 

approximately $2.7 billion in benefits for workrelated injuries, illnesses, or deaths. Of these 

benefit payments, over $1.7 billion were for wageloss compensation, $782 million for medical and 

rehabilitation services, and $139 million for death 

benefit payments to surviving dependents.

The FECA is the exclusive remedy 

by which Federal employees may obtain 

disability, medical, and/or survivor benefits 

from the Federal government for workplace 

injuries. Decisions for or against the payment 

of benefits may be appealed to the Employees’ 

Compensation Appeals Board (ECAB), an 

independent body in the Department of Labor 

(DOL). Program activities are carried out in the 12 

program district offices around the country.

Funding

Benefits are paid from the Employees’ 

Compensation Fund. Agencies are billed each 

August for benefits paid for their employees from 

the Fund, and most agencies, other than the U.S. 

Postal Service (USPS) and non-appropriated fund 

agencies, include those chargeback costs in their 

next annual appropriation request to Congress. 

Remittances to the Fund are not made until the 

first month of the subsequent fiscal year (or later, if 

an agency’s full-year appropriation is enacted after 

the subsequent fiscal year begins). The annual 
7

Federal Employees’ Compensation Act

DOL appropriation makes up any difference 

between prior year remittances and current year 

need, which is affected by Federal wage increases 

and inflation in medical costs.

Expenses for a small number of cases 

are not charged back to employing agencies, but 

also are covered by the DOL appropriation. For 

FY 2008, these non-chargeback expenses were 

approximately $36.0 million. Non-chargeable 

costs are attributable to injuries that occurred 

before December 1, 1960, when the chargeback 

system was enacted, to employees of agencies 

that are no longer in existence, or to injuries which 

have FECA coverage under various “Fringe 

Acts” such as the Contract Marine Observers 

Act, Law Enforcement Officers Act, and the War 

Hazards Compensation Act, that did not contain 

mechanisms for billing employers.

For FY 2008, administrative expenditures 

for the FEC program totaled $155.3 million. Of 

this amount, $142.7 million, approximately 

5.1 percent of total program costs, were direct 

appropriations to the DOL’s Office of Workers’ 

Compensation Programs (OWCP), including 

$89.4 million in salaries and expenses and $53.2 

million in “fair share” expenditures out of the 

FECA Special Benefits account. These latter funds 

are specifically earmarked for OWCP capital 

investments for the development and operation 

of automated data management and operations 

support systems, periodic roll case management, 

and benefit oversight. 

Another $12.6 million are 

separately appropriated to 

the Department for legal, 

investigative, and other 

support from the ECAB, 

Office of the Solicitor, the 

Office of the Inspector 

General, and the U.S. 

Treasury.

Government Performance 

Results Act

In FY 2008, the Division of Federal Employees’ 

Compensation (DFEC) achieved all five of its 

indicators under DOL’s Government Performance 

Results Act (GPRA) goal to “minimize the human, 

social, and financial impact of work-related injuries 

for workers and their families.” As a result:

DFEC far exceeded its Lost Production Days rate 

(LPD per 100 employees) target of 48.5 days for 

all government less U.S. Postal Service cases, by 

reducing lost days to 41.3.

The average LPD for U.S. Postal Service cases was 

133.6 days, significantly better than DFEC’s FY 

2008 target of 142 days.

Through use of Periodic Roll Management, 

DFEC produced $16.9 million in first-year savings, 

exceeding its target of $14 million.

The program achieved a rate of increase of 

3.2 percent in per-case medical costs in FECA 

compared to an increase of 7.6 percent for 

nationwide health care costs.

Targets were met by DFEC in five key 

communication performance areas: access to 

Claimant Query System; average caller wait times; 

average callback response times; calls responded 

to on same day; and call handling quality.

Benefit Outlays 

Under Feca FY 2008

Total Benefits  $2,658 Millio

Long Term Disability (Wage-Loss) 52.5% $1,395 Milli

Medical Benefits 29.4% $ 782 Million

Temporary Disability (Wage-Loss) 12.9% $ 342 Millio

Death Benefits 5.2% $ 139 Million

*Actual Obligatio
8

Safety, Health, and Return-toEmployment Initiative

The Safety, Health and Return-to-Employment 

(SHARE) Initiative for Federal Executive Branch 

agencies was established in 2004. The Department 

of Labor was designated to lead the Initiative.

The Secretary of Labor assigned the Occupational 

Safety and Health Administration and the OWCP 

responsibility for administering and monitoring 

program efforts.

To reaffirm the commitment to improving 

safety and health in the Federal sector, the 

SHARE initiative was extended for three years on 

September 29, 2006. The goals and goal-setting 

methodology for SHARE II remain essentially 

the same; FY 2003 agency performance data will 

remain the baseline for the first three goals of the 

initiative. However, all agencies were required to 

achieve at least a 55 percent timely filing rate under 

Goal 3 in FY 2008. Those agencies for which a five 

percent per year improvement from their FY 2003 

baseline resulted in a FY 2008 goal higher than 

55 percent, continued to have their performance 

tracked against that formula-driven target, except 

that no agency’s goal was required to exceed 95 

percent. In FY 2009, the minimum thresholds will 

rise to 60 percent. The Goal 4 target also has been 

slightly modified. Lost production days (LPD) 

figures were revised due to a data system change 

which yields a more accurate compilation of lost 

days. FY 2006 outcomes were recalculated using 

the new computation methodology and will be 

used as the new baseline for LPDs. Agencies with 

FY 2006 baseline LPDs at or below 15 days will 

be charged with maintaining an LPD rate of 15 

or less. All other agencies will have their progress 

measured against the formula-driven targets of 

reducing LPDs by one percent per year.

OWCP has completed the fifth year of 

data collection and performance tracking under 

the SHARE Initiative. As in FY 2007, the Federal 

government as a whole (less the U.S. Postal 

Service) was successful in achieving all four 

goals by the end of FY 2008. Four departments 

and nine independent agencies met each of 

the performance measures in FY 2008. OWCP 

continued to collaborate with agencies in 

achieving two of the Initiative’s goals: to increase 

the timely filing of injury notices; and to reduce lost 

production days due to workplace injuries and 

illnesses by at least one percent per year.

A major accomplishment in the fifth year 

of SHARE was the continued improvement in 

the timely filing of injury notices. OWCP’s ability 

to act promptly on medical bills and prevent any 

interruption of income is directly and critically 

related to the early submission of claim forms. By 

filing 77.2 percent of their cases with OWCP 

within 14 days, non-Postal agencies far exceeded 

the FY 2008 goal of 63.3 percent. FY 2008’s 

performance represents more than a 55 percent 

improvement over the government’s FY 2003 base 

year timely filingrate of 49.6 percent.

With non-Postal agencies averaging 41.3 

lost days per 100 employees versus a goal of 48.5 

lost days, the SHARE goal for LPDs was met 

for the third time in FY 2008. The achievement 

of this difficult goal in FY 2008 demonstrates 

that agencies are focusing on the long-term 

changes needed to improve their disability case 

management programs.

iFECS

In late FY 2008 DFEC initiated the CA-7 

enhancement project in order to improve 

the turn-around times to process CA-7 

compensation claims and to streamline the benefit 

payment process. The project encompassed 

the enhancements of multiple applications 

within DFEC’s integrated Federal Employees’ 

Compensation System (iFECS) to improve three 

major business needs:
9

Federal Employees’ Compensation Act

Increasing the timeliness of compensation 

payments;

Streamlining the adjudicatory and 

payment process within iFECS; and

Capturing accurate performance metrics 

related to Claims Examiner actions and the 

timelines of compensation payments.

Also initiated in FY 2008 was the 

design and development of an electronic 

method to submit CA-7 claims through 

the Agency Query System. Once 

deployed the system will improve CA-7 

timeliness submission on the part of 

employing agencies and allow DFEC 

to more promptly pay wage loss and 

permanent impairment claims. 

Case Adjudication and 

Management

Approximately 134,000 new injury and illness 

claims were filed under FECA in FY 2008. Eightysix percent were for traumatic injuries, such as 

those caused by slips and falls. The rest were 

for medical conditions arising out of long-term 

exposure, repeated stress or strain, or other 

continuing conditions of the work environment. 

For traumatic injury claims, 97.9 percent were 

adjudicated within 45 days of the day OWCP 

received notice of the injury. In FY 2008, the FEC 

program also achieved a high rate of timeliness in 

deciding non-traumatic injury claims despite the 

complexities involved. For “basic” occupational 

disease cases with an uncomplicated fact pattern, 

95.5 percent were adjudicated within 90 days. 

Of the more complex non-traumatic cases, 87.8 

percent were adjudicated within 180 days.

The FEC program has achieved a 20 

percent reduction in the past decade in the 

average length of disability in new injury cases 

under its Quality Case Management (QCM) 

program. Under QCM, implemented in FY 1993 

as another means of reducing the number of days 

an injured worker was out of work, every injury 

case with a wage-loss claim filed and no returnto-work date is reviewed for assignment to an 

early intervention nurse contracted by the FEC 

program. From the earliest stages after the injury, 

the nurse meets with the injured worker and 

serves as the human face of OWCP. Coordinating 

medical care and return-to-work issues, the nurse 

not only works with the injured employee but 

also the attending physician and the employing 

agency. If it seems that the injured worker will 

not return to work soon, the nurse coordinates the 

transfer of the case for vocational rehabilitation 

services and/or more aggressive medical 

intervention.

In FY 2008, 7,821 injured Federal 

employees were returned to work as a result of 

early nurse intervention. Additionally, vocational 

rehabilitation counselors arranged training and 

successfully placed 621 injured workers into 

non-Federal employment. Due, in part, to these 

successful early intervention actions, the average 

length of disability (lost production days within 

the first year from the date FECA wage-loss began) 
10

continued to be reduced from 148 days in FY 2007 

to 145 days in FY 2008.

The FEC program continued to dedicate 

resources to the thorough review of long-term 

disability cases. As part of that review, Periodic 

Roll Management (PRM) staff arranges second 

opinion medical examinations to reassess changes 

in medical condition and fitness for work and 

recommends referral to vocational rehabilitation 

and placement assistance with a goal of 

reemploying injured workers. Of the cases that 

were screened in FY 2008, the disability in 1,573 

cases had either resolved or lessened to the point 

that return to work was possible. Adjustments 

or termination of benefits resulting from the 

changes in these cases produced $16.9 million in 

compensation benefit savings, exceeding FEC’s FY 

2008 target of $14 million. 

Central Medical Bill Processing

OWCP’s medical bill processing service continued 

to achieve improvements in operating efficiencies. 

During FY 2008, DFEC avoided $70.6 million in 

additional costs due to further improvements in 

the editing of bills, which in turn reduced costs 

charged back to agencies.

Timely and accurate medical bill 

processing is a critical element in administration 

of the FECA. In FY 2008, the bill processing 

system was enhanced to include Ambulatory 

Surgical Center (ASC) pricing enhancements. 

These enhancements are for approved surgeries 

and ancillary services performed in an ASC 

setting and were assigned indicators to determine 

billing appropriateness, pricing category, 

and reimbursement levels. An additional 

enhancement, Modifier Level Pricing, covers 

various procedure codes and contains appropriate 

and valid modifiers for proper payment of 

services. 

In FY 2008, the vendor processed 

5,182,096 bills and handled 764,795 telephone calls. 

Authorizations for treatment were processed in 

an average of one work day and 99.8 percent of 

bills were processed in 28 days. Enrollment of 

8,360 new providers brought the total of enrolled 

providers to 201,939.

Hearings and Review

Individuals who disagree with an Office formal 

decision on a claim may exercise their appeal 

rights by requesting an oral hearing or a review 

of the written record from the Branch of Hearings 

and Review. In FY 2008, the Branch received a 

total of 6,584 incoming requests for reviews of the 

written record and oral hearings, and issued a total 

of 6,789 decisions.

In FY 2008, customer service and 

turnaround times improved in most of the 

measured areas. The period of time between 

receipt of a case file and the issuance of a remand 

or reversal before a hearing decreased by an 

average of 21 percent, from 85 days in FY 2007 to 

67 days in FY 2008. For those case files where a 

hearing was held, the time period for issuance of a 

decision decreased by 8 percent, from an average 

of 209 days in FY 2007 to 193 days in FY 2008. 

For appeals initiated from a review of the written 

record, the Branch exceeded its goal by issuing 

decisions in an average of 93 days for FY 2008.

In the interest of improving appeals 

processing times, the Branch continues to convert 

hearing requests originating in geographical areas 

less traveled to telephone hearings. In FY 2008, 

the branch introduced video teleconferencing to 

increase productivity associated with hearings. 

The Branch found that video teleconferencing 

expedited the hearing process by avoiding 

unnecessary wait times in cities where a full 

docket was not available. 
11

Federal Employees’ Compensation Act

Performance Assessment

During FY 2008, the FEC program was rated 

“Moderately Effective” under the Program 

Assessment Rating Tool (PART) process. The 

findings can be summarized as follows:

The FEC program is well managed, with 

operational authority and responsibility clearly 

defined. The program’s design provides 

checks and balances to ensure proper program 

administration, while maintaining sufficient 

flexibility to enable operational and procedural 

improvements.

The FEC program’s purpose is clear and its 

design is free of major flaws.

Administrative and litigation costs are reduced 

through FECA’s design as a non-adversarial 

system. FEC program direct administrative costs 

generally constitute around 5.1 percent of total 

program obligations.

The FEC program’s performance goals are 

clear, measure outcomes, and align with agency 

mission. Long-term targets aim for continuous 

improvement and provide the basis for 

establishing performance standards comparable to 

industry standards.

FEC program action items in FY 2008 

related to this PART evaluation included:

Working with Congress to update the benefit 

structure, adopt best state practices, and convert 

benefits for retirement-age individuals to a typical 

retirement level.

Implementing recommendations from an 

independent evaluation to improve significant 

components of FECA processes, including 

industry best practices.

Conducting preliminary work, including the 

development of a logic model that will serve as 

a basis for future impact evaluation of FECA’s 

disability management activities and program 

effectiveness.

Feca Benefits Charged T

Employing Agenci

Chargeback Year 20

Chargeback Total: $2,573 Million

Postal Service $ 979 Millio

Defense $ 614 Million*

Veterans Affairs $ 176 Millio

Homeland Security $ 161 Milli

Justice $ 99 Million

Transportation $ 98 Million

Agriculture $ 73 Millio

All Other $ 374 Milli

*Defense Includes Navy ($242M), Army ($180M), Air Force ($131M),

Dept. of Defense ($61M)

Note: The sum of individual agencies may not equal total due to roundin
12

Legislative Reform

Although reform of the Federal Employees’ 

Compensation Act was not adopted in the FY 

2008 budget, DFEC continued to pursue changes 

to the FECA that would enhance incentives for 

injured employees to return to work; address 

retirement equity issues; and update and make 

other benefit changes. Specifically, the reform 

proposed to:

Convert compensation for new injuries or new 

claims for disability to a lower benefit at the Social 

Security retirement age.

Move the 3-day waiting period during which an 

injured worker is not entitled to compensation to 

the point immediately after an injury.

Change the way that schedule awards are paid 

to allow uniform lump sum payments to Federal 

employees eligible for such awards.

Eliminate augmented compensation for 

dependents but raise the basic benefit level for all 

claimants.

Allow OWCP to recover the costs, estimated 

at over $2 million annually, paid by responsible 

third parties to FECA beneficiaries during the 

continuation of pay period. 

Increase benefit levels for funeral expenses from 

$1,000 to $6,000. 

Increase benefit levels for disfigurement resulting 

from work injury, and

Identify unreported work earnings and receipt of 

Federal Employees Retirement System retirement 

benefits through regular database matching with 

the Social Security Administration.

FECA Program Evaluation

A process evaluation of the FECA Continuation 

of Pay (COP) Nurse Program, “Improved Early 

Disability Management” (SRA International, Inc., 

February 2008), was conducted in FY 2008 that 

considered industry best practices in early case 

intervention. The study recommended actions 

to improve the delivery of nurse intervention 

services during the initial 45 day COP period 

immediately following injury. The study 

recommended that DFEC clarify purpose, 

objectives, and outcomes; streamline the nurse 

referral process; speed reporting of return-towork and filing of nurse reports; and improve 

information sharing with employing agencies. In 

response to these findings and recommendations, 

DFEC began to develop (1) an electronic capability 

for employing agencies to report when an injured 

worker has returned to work; (2) a Web portal for 

COP nurses for transmitting case status reports; 

and (3) a standardized case evaluation guide for 

publication.

Also during FY 2008, DFEC began an 

evaluation of the coordination between its Nurse 

Intervention and Vocational Rehabilitation 

programs. The study will result in an assessment 

of current case management processes and make 

recommendations to produce more efficient 

and effective returns to work for injured Federal 

employees. The study is slated to be completed 

during FY 2009.

These studies, which effectively bookend 

DFEC’s Case Management processes, will be 

used to improve the current program, adopt 

effective practices and assist employing agencies 

to create re-employment opportunities, facilitate 

job retention, better process new injury claims, 

and manage injury caseloads. Best practices, new 

approaches, and efficiency recommendations 

resulting from the performance studies also will 

directly support the objectives of the SHARE 

initiative to reduce Federal injury rates, speed 

submission of claims and reduce lost production 

days.
13

Federal Employees’ Compensation Act

Services to Claimants and 

Beneficiaries

Quality customer service and customer 

satisfaction are key components of DFEC’s 

mission and “Pledge to Our Customers.” Over 

1.3 million calls were received by the DFEC district 

offices, the majority of which were handled by 

Customer Service Representatives (CSRs) in the 12 

district office call centers. Since 2003, average caller 

wait times have been reduced by half; turnaround 

time to caller inquiries has been reduced by more 

than 70 percent; and response effectiveness has 

improved by nearly 40 percent. During FY 2008, 

calls were answered in an average of 1.45 minutes, 

which is well below the goal of three minutes.

This represents a significant decrease in the 

average wait time of 2.13minutes in FY 2007.

To help ensure quality and to identify 

areas where additional CSR training is needed, 

silent monitoring of calls to the district office 

phone banks continued during the fiscal year.

Communications Specialists on DFEC’s staff 

listen to both sides of a conversation and, using 

Federal Employees’ Compensation Act

 FY 2007 FY 

Number of Employees 

(FTE Staffing Used) 894 892

Administrative Expenditures 1 $144.1 M $142.7 M

Cases Created 134,436 134,013

Wage-Loss Claims Initiated 19,104 19,187

Total Compensation and Benefits 

(Actual Obligations) 2 $2,563.1 M $2,657.6 M

Number of Medical Bills Processed 4,538,626 5,182,096

1 OWCP expenditures; excludes DOL support costs, but includes “fair share” capit

expenditures of $54.0 million in FY 2007 and $53.2 million in FY 2008, respectivel

2 Compensation, medical, and survivor benefits. 

a standardized Quality Monitoring scorecard, 

document the CSRs’ performance. The results 

of quality silent monitoring coupled with local 

telephone survey results show that 97.6 percent of 

callers received courteous service in FY 2008. The 

use of clear and understandable language was 

reported in 98.3 percent of calls, and 96.4 percent of 

calls met knowledge and accuracy standards. The 

goal of 95 percent was exceeded in each of these 

quality categories.

Seventy-one percent of calls to the district 

offices were responded to on the same day 

they were received, exceeding the goal by two 

percent. The average response time for all calls in 

FY 2008 was less than one day (0.87 days), which 

represents the most significant customer service 

improvement. Ninety-five percent of all calls were 

responded to in two days or less.

Also in FY 2008, DFEC expanded access 

to its Claimant Query System and doubled – to 

approximately 1.2 million – the number of Federal 

employees that can obtain information about their 

claims online.

15

Black Lung Benefits Act

Introduction

The Division of Coal Mine Workers’ Compensation (DCMWC) completed its 

thirty-fifth year administering Part C of the Black Lung program in 2008. The 

initial Black Lung benefits program was enacted as part of the Coal Mine Health 
16

and Safety Act of 1969 (the Act). This law created a system to compensate victims 

of dust exposure in coal mines with public funds initially administered by the Social 

Security Administration (SSA).

The number of claims filed in the early 1970’s greatly exceeded expectations. 

The Act was amended by the Black Lung Benefits Act of 1972 (BLBA) to require the 

use of simplified interim eligibility criteria for all claims filed with SSA, and to transfer 

the receipt of new claims to the Department of Labor (DOL) in 1973. The Office of 

Workers’ Compensation Programs (OWCP) assumed responsibility for processing and 

paying new claims on July 1, 1973. Until recently, most of the claims filed prior to that 

date remained within the jurisdiction of SSA. Further amendments in the Black Lung 

Benefits Reform Act of 1977 (Public Law 95-239) mandated the use of interim criteria to 

resolve old unapproved claims. The Black Lung Benefits Revenue Act of 1977 (Public 

Law 95-227) created the Black Lung Disability Trust Fund (Trust Fund), financed by an 

excise tax on coal mined and sold in the United States. The law authorized the Trust 

Fund to pay benefits in cases where no responsible mine operator could be identified 

and transferred liability for claims filed with DOL based on pre-1970 employment to 

the Trust Fund. It also permitted miners approved under Part B to apply for medical 

benefits available under Part C. These amendments made the Federal program 

permanent but state benefits continued to offset Federal benefits where they were 

available.

Current administration of the Black Lung Part C program is governed by 

legislation enacted in 1981. These amendments tightened eligibility standards, 

eliminated certain burden of proof presumptions, and temporarily increased the excise 

tax on coal to address the problem of a mounting insolvency of the Trust Fund, which 

was indebted to the U.S. Treasury by over $1.5 billion at that time.

In 1997, the responsibility for managing active SSA (Part B) Black Lung claims 

was transferred to DOL by a Memorandum of Understanding between SSA and 

DOL. This change improved customer service to all Black Lung beneficiaries and 

was made permanent in 2002 when the Black Lung Consolidation of Administrative 

Responsibilities Act placed the administration of both programs with DOL.
17

Black Lung Benefits Act

Benefits and Services

The Black Lung Part C program provides two 

types of benefits: monthly wage replacement and 

medical services. The program pays a standard 

monthly benefit (income replacement) to miners 

who are determined to be totally disabled from 

black lung disease and to certain eligible survivors 

of deceased miners. The monthly rate of benefits 

is adjusted upward to provide additional 

compensation for up to three eligible dependents. 

In Fiscal Year (FY) 2008, monthly and retroactive 

benefit payments totaled $235.3 million.

The Part C program also provides both 

diagnostic and medical treatment services for 

totally disabling pneumoconiosis. Diagnostic 

testing is provided for all miner-claimants to 

determine the presence or absence of black lung 

disease and the degree of associated disability. 

These tests include a chest x-ray, pulmonary 

function study, arterial blood gas study, and a 

physical examination. Medical coverage for 

treatment of black lung disease and directly 

related conditions is provided for minerbeneficiaries. This coverage includes prescription 

drugs, office visits, and hospitalizations. Also 

provided, with prior approval, are durable 

medical equipment (primarily home oxygen), 

outpatient pulmonary rehabilitation therapy, and 

home nursing visits.

Medical expenditures under the Black 

Lung Part C program during FY 2008 were $37.9 

million. This includes payments of $4.1 million 

for diagnostic services, $32.4 million for medical 

treatment, and $1.4 million in reimbursements to 

the United Mine Workers of America Health and 

Retirement Funds for the cost of treating Black 

Lung beneficiaries. Approximately 168,000 bills 

were processed during the year.

Total Black Lung Part C program 

expenditures for all benefits in FY 2008 were $273.2 

million, a decrease of $18.1 million from FY 2007. 

In FY 2008, benefits were provided from the Trust 

Fund to approximately 30,000 beneficiaries each 

month.

State workers’ compensation laws 

require coal mine operators to obtain insurance 

or qualify as a self-insured employer to cover 

employee benefit liabilities incurred due to 

occupational diseases that are covered by state 

law. If state workers’ compensation is paid for 

pneumoconiosis, any Federal black lung benefit 

received for that disease is offset or reduced by the 

amount of the state benefit on a dollar-for-dollar 

basis. As of September 30, 2008, there were 1,306 

Federal black lung claims being offset due to 

concurrent state benefits.

As an additional benefit to claimants, the 

law provides for payment of attorneys’ fees and 

legal costs incurred in connection with approved 

benefit claims. The fees must be approved 

by adjudication officers. During the past year 

DCMWC processed 141 fee petitions and paid 

approximately $0.6 million in attorneys’ fees from 

the Trust Fund.
18

In FY 2008, 1,086 claims were forwarded 

for formal hearings before the Office of 

Administrative Law Judges (OALJ) and 442 

claims were forwarded on appeal to the Benefits 

Review Board (BRB). At the end of FY 2008, the 

OALJ had 1,928 claims pending while 486 were 

pending before the BRB.

In the Black Lung Part B program, nearly 

33,000 active beneficiaries (with more than 3,300 

dependents) were receiving over $22 million 

in monthly cash benefits as of September 30, 

2008. Part B benefits in FY 2008 totaled over $262 

million. DCMWC completed 6,000 maintenance 

actions on Part B claims during the year, on 

average less than one week from notification.

Black Lung Disability 

Trust Fund

The Trust Fund, established in 1977 to shift the 

responsibility for the payment of black lung claims 

from the Federal government to the coal industry, 

is administered jointly by the Secretaries of Labor, 

the Treasury, and Health and Human Services. 

Claims that were approved by SSA under Part B 

of the BLBA are not paid by the Trust Fund, but 

rather from the general revenues of the Federal 

government.

Trust Fund revenues consist of monies 

collected from the industry in the form of an 

excise tax on mined coal that is sold or used by 

producers; funds collected from responsible mine 

operators (RMOs) for monies they owe the Trust 

Fund; payments of various fines, penalties, and 

interest; refunds collected from claimants and 

beneficiaries for overpayments; and repayable 

advances obtained from Treasury’s general fund 

when Trust Fund expenses exceed revenues. 

Excise taxes, the main source of revenue, are 

collected by the Internal Revenue Service and 

transferred to the Trust Fund. In FY 2008, the 

Trust Fund received a total of $653.2 million in 

tax revenues. An additional $5.0 million was 

collected from RMOs in interim benefits, fines, 

penalties, and interest. Total receipts of the Trust 

Fund in FY 2008 were nearly $1.1 billion, including 

$426 million in repayable advances from the 

Department of the Treasury.

Total Trust Fund disbursements during FY 

2008 were almost $1.1 billion. These expenditures 

included $273.2 million for income and medical 

benefits, $739.5 million for interest payments on 

repayable advances from the Treasury, and $58.3 

million to administer the program ($32.8 million 

in OWCP direct costs and $25.5 million for legal 

adjudication and various financial management 

and investigative support provided by the Office 

of the Solicitor, the OALJ, the BRB, Office of the 

Inspector General, and the Department of the 

Treasury).

In 1981, the Black Lung Benefits Revenue 

provisions temporarily increased the previous 

excise tax to $1.00 per ton for underground coal 

and $0.50 per ton on surface mined coal, with a 

cap of four percent of sales price. In 1986, under 

the Comprehensive Budget Reconciliation Act of 

1985, excise tax rates were increased again by 10 

percent. The rates for underground and surface 

mined coal were raised to $1.10 and $0.55 per 

ton respectively, and the cap was increased to 4.4 

percent of the sales price. Under the law in effect at 

the end of FY 2008, these tax rates will remain until 

December 31, 2013, after which the rates will revert 

to their original levels of $0.50 underground, $0.25 

surface, and a limit of two percent of sales price. 
19

Black Lung Benefits Act

Central Medical Bill Processing

OWCP’s medical bill processing service 

continued to achieve improvements in operating 

efficiency and effectiveness. Timely and accurate 

medical bill processing is a critical element in 

administration of the Black Lung program. 

During FY 2008, DCMWC avoided $189,000 in 

medical costs due to further improvements in the 

editing of bills.

In FY 2008, the vendor processed 167,507 

Black Lung bills. A total of 99.5 percent of bills 

were processed within 28 days. The number of 

telephone calls handled was 58,042. Enrollment 

of 389 new providers brought the total of enrolled 

providers to 107,535.

Performance Assessment

Since DCMWC was reviewed in 2003 using the 

Program Assessment Rating Tool, the Black Lung 

program has proceeded with initiatives that were 

recommended by this evaluation. These have 

included a renewed focus on reducing the Trust 

Fund’s debt (see below for details), evaluating 

personnel utilization and allocation, and setting 

a schedule of annual targets for improving 

performance in both Government Performance 

Results Act (GPRA) goals and claims processing 

times (see below).

In FY 2007, an independent consulting 

firm completed and delivered a statistical 

projection of claim trends to 2020 and a study of 

best practices of other compensation systems. 

In FY 2008, DCMWC continued to evaluate 

these studies in order to incorporate their 

recommendations into ongoing revisions of the 

program’s Accountability Review procedures.

Legislative Proposal to Address 

Trust Fund Insolvency

Although tax receipts to the Trust Fund were 

sufficient to cover benefits, current operating costs, 

and some interest charges, the Trust Fund needed 

to borrow $426 million from the Treasury to pay 

the balance of the FY 2008 interest due. By the end 

of FY 2008, the Trust Fund’s cumulative debt to the 

Treasury was $10.5 billion. Since benefit payments 

for Black Lung claims in the late 1970’s and early 

1980’s far exceeded revenues, the Trust Fund 

was forced to draw on repayable advances from 

the Treasury to meet benefit obligations. While 

operating costs were covered by revenue, the 

Trust Fund’s debt continued to climb. The Trust 

Fund borrowed to cover its debt service, which 

amounted to more than $739 million at the end of 

FY 2008.

To remedy this financial problem, DOL 

and Treasury proposed a legislative package 

which would:

Provide for the restructuring of the outstanding 

Trust Fund debt, much of which was incurred at 

the higher Treasury interest rates prevalent during 

the 1980’s, thereby taking advantage of current 

and lower Treasury interest rates.

Extend until the debt is repaid the current Trust 

Fund excise tax levels ($1.10 per ton for coal mined 

underground; $0.55 per ton for surface), which are 

set to decline after December 31, 2013. The tax rate 

will revert to the lower (original 1978) rates of $0.50 

per ton for underground-mined coal sold and 

$0.25 per ton for surface in the year following the 

elimination of the Trust Fund’s debt.

Provide a one-time appropriation to the Trust 

Fund to cover the Treasury’s loss of income caused 

by the restructuring.
20

After consultation with interested parties 

and the staffs of the appropriate Congressional 

committees, DOL and Treasury staffs prepared 

a revised version of the proposed legislation that 

was previously transmitted to Congress in 2000, 

2002, 2004, and 2005. The Secretaries of Labor 

and the Treasury jointly transmitted the revised 

legislative proposal to the Congress on April 4, 

2007. While this proposal was never introduced, 

a number of its provisions were included in the 

Emergency Economic Stabilization Act of 2008, 

H.R. 1424, which was pending at the end of FY 

2008. (This Act was approved and became law in 

October 2008, during the first week of FY 2009.)

Government Performance 

Results Act

In FY 2008, DCMWC continued its efforts to reach 

DOL’s GPRA goal to “minimize the human, 

social, and financial impact of work-related 

injuries for workers and their families.” DCMWC 

achieved its goal to:

Reduce the average time required to process a 

claim from the date of receipt to the issuance of a 

Proposed Decision and Order (PDO) to no more 

than 220 days.

By the end of FY 2008, the average time 

required to process a claim from the date of receipt 

to the date of the PDO had been reduced to 205 

days, down from 224 in FY 2007.

The total number of new claims declined 

13.1 percent from 4,913 in FY 2007 to 4,270 in FY 

2008. These claim numbers include survivor’s 

conversions that are automatically awarded. 

Conversion claims numbered 580 in FY 2007 

and 480 in FY 2008. The total inventory of claims 

pending a PDO declined from 2,567 at the end of 

FY 2007 to 1,975 at the close of FY 2008.

The second GPRA goal for FY 2008 was 

new, and it proved to be more elusive. DCMWC 

adopted the National Health Expenditure 

Projection (NHEP) as a guide against which the 

program would:

Measure its medical treatment costs with a goal of 

keeping the average cost per miner below the level 

of inflation predicted by the NHEP.

In FY 2008 the Black Lung program 

compared its medical cost trend to forecasts 

reported in the NHEP published by the Centers 

for Medicare and Medicaid Services, Office of the 

Actuary. The annual change in average Black 

Lung costs in FY 2008 was above the program’s 

target to maintain costs at or below the NHEP 

FY 2008 projection of 6.1 percent. The increase in 

average cost was primarily caused by a surge in 

the number of costly in-patient hospital billings. 

Because of the small number of eligible miners, 

costs are volatile and not easily distributed across 

the population. Nevertheless, DCMWC was 

actively pursuing cost-containment measures 

at the end of the fiscal year, including tightened 

auditing of contractor-paid bills and imposing 

stricter controls on prescription payments.

Although the Program no longer 

maintains its original GPRA goal of ensuring that 

80 percent of claims have no requests for further 

action pending one year after receipt of the claim, 

it continued to monitor this figure. In FY 2008, 

81.8 percent of claims were resolved with no 

pending requests for further action. The Black 

Lung program will continue to work closely with 

both its stakeholder and authorized provider 

communities to ensure that delivery of services 

continues to improve and performance standards 

are met.
21

Black Lung Benefits Act

Operation and Maintenance of 

Automated Support Package

DCMWC’s Automated Support Package (ASP) 

is provided through a contract. The ASP includes 

a client-server computer system for all black lung 

claims, statistical and data processing, medical 

bills processing, telecommunications support, and 

administrative functions.

During FY 2008, DCMWC continued to 

enhance the user interface to the main application, 

ASP. Several new screen edits were implemented 

to reduce user input errors and improve data 

accuracy and input efficiency. DCMWC also 

implemented several changes which improved 

the accuracy of data stored in the system and to 

assist in the detection and prevention of erroneous 

payments.

Compliance Assistance

Section 423 of the BLBA requires that each 

coal mine operator subject to the BLBA secure 

payment of any benefits liability by either 

qualifying as a self-insurer or insuring the risk 

with a stock or mutual company, an association, 

or a qualified fund or 

individual. Any coal 

mine operator failing 

to secure payment is 

subject to a civil penalty 

of up to $1,100 for each 

day of noncompliance.

 According to FY 

2008 estimates by DOL’s 

Mine Safety and Health 

Administration, there 

were 2,030 active coal 

mine operators subject to the requirements of the 

BLBA. Under the BLBA, the Secretary of Labor 

can authorize a coal mine operator to self-insure 

after an analysis of the company’s application 

and supporting documents. At the close of FY 

2008, 75 active companies were authorized by 

the Secretary of Labor to self-insure. These selfinsurance authorizations cover approximately 690 

subsidiaries and affiliated companies. 

The Responsible Operator (RO) Section 

staff in DCMWC’s national office is specifically 

assigned to record the existence of coal mine 

operators and their insurance status. The staff 

answers frequent written, telephone, and e-mail 

inquiries from operators and insurance carriers 

and evaluates requests for self-insurance.

During FY 2008, the RO section sent 

form letters to 914 coal mine operators reminding 

them of their statutory requirement to insure 

and stay insured against their potential liability 

for black lung benefits. Of these, 760 were 

found to be insured, 110 were insured through 

a parent entity or not engaged in coal mining, 

and 23 were uninsured companies that required 

assistance. The remaining 21 were returned 

Management of Ss

Part B Black Lung Claim

FY 2008

Professional and Timely Claims Maintenance Service

Provided to Part B Claimants by DCMWC Included

Completing 6,000 Maintenance Action

With Average Completion Time of Le

Than One Week from Notificati

Managing the Expenditure of More Tha

$262 Million in Benefits

DCMWC was Responsible for Nearly 33,000 Active Part B Ca
22

unclaimed, delivered with no response, or failed 

delivery for another reason. Letters also were 

mailed to commercial insurers reminding them 

of the statutory requirements for writing black 

lung insurance and for annual reporting to 

DCMWC of the companies insured and policy 

numbers. These letters generated many questions 

from underwriters and resulted in improved 

compliance. During FY 2008, DCMWC received 

3,795 reports of new or renewed policies. 

Section 413(b) of the BLBA requires 

DCMWC to provide each individual miner who 

files a claim for benefits with the opportunity to 

undergo a complete pulmonary evaluation at 

no cost to the miner. The project to improve the 

quality of these medical evaluations and reports 

continued during FY 2008, with District Directors 

and national office staff making a number of visits 

to clinics and individual physicians. At these site 

visits, DCMWC staff reviewed the physicians’ 

written evaluations of the medical information 

obtained during the complete pulmonary 

evaluations and made suggestions for improving 

and standardizing the evaluations and reports. 

DCMWC officials also met several times with 

physicians at state and national conferences of the 

National Coalition of Black Lung and Respiratory 

Disease Clinics to help improve reporting. During 

FY 2008, the program also focused on updating 

the list of approved diagnostic physicians by 

contacting many physicians in order to ensure that 

highly-qualified doctors were available to perform 

medical evaluations.

In FY 2008 the program enhanced its 

long-standing commitment to ensuring that 

payments to beneficiaries requiring assistance 

are properly utilized for their use and benefit. 

DCMWC continued to track district office actions 

in the appointment of representative payees and 

the monitoring of their expenditure of benefits, a 

process began in FY 2007. During FY 2008, over 98 

percent of representative payee appointments and 

expenditure reports were evaluated and acted on 

within thirty days. The program also developed a 

new reporting procedure for representative payees 

that reduced paperwork for both payees and 

DCMWC staff and sustained the same high level 

of benefit monitoring.

DCMWC greatly expanded its presence 

on the World Wide Web in FY 2008, adding new 

pages that offer assistance to diagnostic physicians, 

claimants, representative payees, insurers, and coal 

operators. Statistical pages also were added for the 

first time.
23

Black Lung Benefits Act

Litigation

Cou

During FY 2008, the courts of appeals issued 

thirty-nine decisions in cases arising under the 

BLBA. Forty-two new appeals were filed. The 

following summarizes the most significant 

appellate decisions:

Irrebuttable Presumption of Entitlement: 30 

U.S.C. § 921(c)(3)(A)-(C); 20 C.F.R. §§ 718.205(c), 

718.304. The statute and the regulations provide 

that the survivor of a miner is entitled to benefits 

if she can prove that the miner died due to 

pneumoconiosis. They also provide that the 

miner will be irrebuttably presumed to have died 

due to pneumoconiosis if she establishes that the 

miner suffered from a chronic dust disease of the 

lung,and sheproves that condition by 1) X-ray 

evidence of large opacities; 2) biopsy or autopsy 

evidence of massive lesions; or 3) a diagnosis 

by other equivalent means. In The Pittsburg & 

Midway Coal Mining Co. v. Director, OWCP, 508 

F.3d 975 (11th Cir. 2007), the Eleventh Circuit 

agreed with the Director that once invoked, the 

presumption of death due to pneumoconiosis 

is irrebuttable and cannot be rebutted by any 

evidence whatsoever, including affirmative proof 

that the miner’s death was not, in fact, due to 

pneumoconiosis. The court also accepted the 

Director’s position that “massive lesions”—

an undefined term contained in the second 

criterion—may be established by a diagnosis of 

“complicated” pneumoconiosis. Finally, the court 

agreed with the Director, and disagreed with 

the Fourth Circuit, and held that a diagnosis of 

massive lesions/complicated pneumoconiosis is 

sufficient to invoke the irrebuttable presumption; 

thus, the court held that the diagnosis need not 

further state that the lesions, if X-rayed, would be 

equivalent to the large opacities required by the 

first criterion.

Chronic Obstructive Pulmonary Disease Within 

the Definition of Pneumoconiosis: 30 U.S.C. § 

902(b); 20 C.F.R. § 718.201(a)(2). To obtain benefits 

under the Act, a miner must prove that he suffers 

from pneumoconiosis. The statute defines 

pneumoconiosis as “a chronic dust disease of the 

lung . . . arising out of coal mine employment.” 

The implementing regulations provide that 

both restrictive and obstructive lung diseases are 

included within the definition of pneumoconiosis 

as long as coal mine employment was a 

substantial contributor to their development. In 

Consolidation Coal Co. v. Director, OWCP, 521 F.3d 

723 (7th Cir. 2008), the Seventh Circuit considered 

whether the ALJ properly discredited doctors 

who reported that the miner’s chronic obstructive 

pulmonary disease was due solely to smoking, 

with coal mine employment playing no role. 

The court held that the ALJ properly rejected 

these opinions: one physician’s opinion was 

conclusory and unexplained while the second 

physician merely spoke in generalities rather than 

addressing the particulars of the miner’s condition. 

The court further faulted the second physician 

because he indicated that he would never connect 

coal mine employment with obstructive disease 

since, in his view, the connection rarely happens. 

The court held that the physician’s categorical 

refusal to consider coal mine employment as a 

possible cause of the miner’s obstructive lung 

disease was contrary to the Department of Labor’s 

conclusion, rendered after reviewing the available 

scientific and medical literature, that coal mine 

employment may cause clinically significant 

obstructive disease.
24

Attorney Fees: 30 U.S.C. § 932(a), Incorporating 

33 U.S.C. § 928, and 20 C.F.R. § 725.366(a)-(b). The 

statute provides that, under certain circumstances, 

successful claimants are entitled to reasonable 

attorney fees from their employers, and the 

regulations set forth various factors that may be 

considered in determining the fee amount. In 

B & G Mining, Inc. v. Director, OWCP, 522 F.3d 

657 (6th Cir. 2008), the Sixth Circuit affirmed 

the fees awarded by lower tribunals. In doing 

so, the court held that the lodestar method—

calculating fees by multiplying “the number of 

hours reasonably expended on the litigation ... 

by a reasonable hourly rate”—is applicable to 

black lung claims; the regulatory factors do not 

impermissibly enhance or supplant the lodestar 

method; hourly rates awarded in prior cases may 

be used as a guideline if the prevailing market rate 

is unknown; risk of loss may not be considered 

when determining a reasonable hourly rate; and 

the number of hours worked may be calculated 

based upon quarter-hour increments.

Benef

During FY 2008, the Benefits Review Board (BRB) 

issued 727 black lung decisions, several of which 

significantly affect the Secretary’s administration of 

the benefits program. The following summarizes 

some of the more significant decisions of the 

Board, categorized by issue:

Modification. Under the Act’s modification 

provision, a party may request reconsideration 

of the denial of a claim or an award of benefits 

based on a mistake in the determination of a fact 

or a change in conditions. Modification must be 

requested within one year of the decision denying 

benefits or, in the case of an award, within one 

year of the last payment of benefits.

The Department significantly revised the 

black lung program regulations in 2001. Among 

other changes, district director procedures for 

the adjudication of claims were simplified. 

For example, under the revised regulations, 

an employer is deemed to have contested a 

claimant’s entitlement to benefits even if it does not 

respond to notification of a claim. Under the prior 

regulatory scheme, an employer was required to 

contest the claimant’s entitlement, and if it failed to 

do so, was barred from challenging the claimant’s 

entitlement in future proceedings, including on 

modification. In D.S. v. Ramey Coal Co., 24 BLR 

1-33 (2008), the BRB held that, in a claim governed 

by the revised regulations, an employer may 

request modification even if it did not previously 

participate in the claim’s adjudication. Agreeing 

with the Director, the BRB reasoned that because 

the employer is deemed to have contested 

claimant’s entitlement, the employer’s failure to 

participate in the initial claim proceedings does 

not preclude it from challenging the claimant’s 

entitlement through modification.

The black lung program regulations 

allow the withdrawal of a claim until a denial of 

the claim becomes effective; a withdrawn claim is 

treated as if it were never filed. The rules do not 

address withdrawal of modification petitions, 

however. In W.C. v. Whitaker Coal Co., 24 BLR 1-20 

(2008), the BRB held that, given this regulatory 

void, it is reasonable to treat a request for 

withdrawal of a modification petition in the same 

manner as a request for withdrawal of an original 

claim. Thus, the BRB held that a request for 

modification may be withdrawn until an effective 

decision on modification is entered. If withdrawal 

is allowed, the modification request is treated as if 

it were never filed. 
25

Black Lung Benefits Act

Entitlement Criteria. Under the program 

regulations, a miner may establish total 

pulmonary disability based on pulmonary 

function test results that meet certain published 

values, which are calculated based on a miner’s 

age and height. The tables of these “qualifying” 

values extend only to age 71, however. In K.J.M. 

v. Clinchfield Coal, 24 BLR 1-40 (2008), the BRB 

addressed how pulmonary function studies 

should be interpreted in black lung claims filed 

by miners older than 71. Agreeing with the 

Director, the BRB held that a fact-finder may not 

independently determine qualifying values for 

such a miner, but must apply the table values for 

a miner aged 71. The party opposing entitlement 

may submit evidence to prove that the test results 

are normal or otherwise do not establish total 

disability. 

Evidentiary Limitations. The Black Lung 

program regulations limit the amount of medical 

evidence a party may submit in support of its 

affirmative case, in rebuttal of the opposing party’s 

affirmative case, and to rehabilitate affirmative 

evidence that was the subject of rebuttal. 

Records of medical treatment or hospitalization 

for respiratory or pulmonary disease are not 

subject to the limitations, however. In J.V.S. v. 

Arch of West Virginia, 24 BLR 1-78 (2008), the 

BRB addressed several issues relating to the 

evidence-limiting rules. First, the BRB held that 

under the plain language of the regulations, each 

private party is allowed to submit a reading 

of the chest x-ray generated as a result of the 

medical examination the Department is statutorily 

required to provide each miner/claimant; the 

reading need not contradict the original reading 

by the government’s physician. Second, the BRB 

held that a biopsy report contained in medical 

treatment records is subject to the exception for 

treatment records. Finally, the BRB held that 

although the rules do not provide directly for 

rebuttal of treatment records, they do allow for 

review of the records through other avenues, and 

therefore protect the due process rights of the 

parties. Thus, for example, the party opposing the 

claimant’s entitlement may have the claimant’s 

treatment records reviewed by the physicians 

who prepared its affirmative medical reports. In 

addition, an employer may have any biopsy slides 

contained in the miner’s medical records reviewed 

by a pathologist and may then submit the 

resulting report as part of its affirmative evidence. 

In L.P. v. Amherst Coal Company, 24 BLR 1-55 

(2008), the BRB agreed with the Director and 

held that a party has the right to cross-examine a 

physician whose treatment records are submitted 

into evidence by the miner/claimant. The BRB 

reasoned that under Supreme Court precedent, 

the Administrative Procedure Act and the 

program regulations, “a party has a right to crossexamine a physician whose report is admissible 

under” the medical treatment records exception 

if “the physician’s report is material and crossexamination is necessary to ensure the integrity 

and fundamental fairness of the adjudication of 

the claim and for a full and true disclosure of the 

facts.” Id. at 1-63.

Time Limit for Requesting Hearing. Under the 

program regulations, a party has 30 days after 

the district director issues a proposed decision 

and order within which to request a hearing. The 

rules require that decisions be served by certified 

mail but do not specifically identify the date a 

decision is considered to be issued. Agreeing with 

the Director, the BRB held that a district director’s 
26

decision is not considered issued, 

and the period for requesting a 

hearing does not begin, until the 

decision is served on the parties 

by certified mail. W.L. v. Director, 

OWCP, 24 BLR 1-99 (2008). 

Statute of Limitations. The 

Act provides that a claim for 

benefits must be filed within 

three years of a medical 

determination of total disability 

due to pneumoconiosis that 

has been communicated to the 

miner. Under the program 

regulations, each claim for 

benefits is presumed to be timely 

filed. Agreeing with the Director, 

the BRB held that a summary of 

a medical report included in a 

decision issued in a prior denied 

claim does not constitute a 

medical determination sufficient 

to commence the running of 

the Act’s limitations period. In 

addition, the BRB held that 

communication of a medical 

determination to claimant’s 

representative is insufficient, by itself, to establish 

that the determination was communicated to the 

claimant. W.C. v. Benham Coal, 24 BLR 1-50 (2008).
27

Black Lung Benefits Act 

Part C 1 Part B 2

 FY 2007 FY 2008 FY 2007

Number of Employees (FTE Staffing Used) 185 179 17 16

OWCP Administrative Expenditures 3 $ 33.2 M $ 32.4 M $ 5.4 M $ 5.4 M

Total Compensation and Benefit Payments 4 $291.3 M $273.2 M $289.5 M $262.3 M

Beneficiaries in Pay Status at End of Fiscal Year 

 Monthly 31,305 28,597 36,888 32,732

 Medical Benefits Only 2,324 1,924 N/A N/A

Responsible Coal Mine Operator Beneficiaries 

in Pay Status at End of Fiscal Year

 Monthly 4,830 4,616 N/A N/A

 Medical Benefits Only 777 662 N/A N/A

1 Part C benefits are paid out of the Black Lung Disability Trust Fund or by the liable coal mine operator or insurer

2 Part B benefits are paid out of general revenue funds from the U.S. Treasury

3 Part C figures exclude DOL and Department of Treasury support costs of $26.3 million in FY 2007 and $25.9 million in FY 2008, respective

Also excludes interest on the Trust Fund deb

4 Part C figures exclude collections from responsible coal mine operators for benefits paid by the Trust Fund on an interim basis, refunds for OWC

administrative costs paid, and other miscellaneous reimbursements.

Black Lung Benefits Act

29

Longshore and Harbor

Workers’ Compensation Act

Introduction

Enacted in 1927, the Longshore and Harbor Workers’ Compensation Act 

(LHWCA) provides compensation for lost wages, medical benefits, and 
30

rehabilitation services to longshore, harbor, and other maritime workers who are 

injured during their employment or who contract an occupational disease related 

to employment. Survivor benefits also are provided if the work-related injury or 

disease causes the employee’s death. These benefits are paid directly by an authorized 

self-insured employer, through an authorized insurance carrier, or in particular 

circumstances, by an industry-financed Special Fund.

In addition, LHWCA covers certain other employees through the following 

extensions to the Act:

The Defense Base Act (DBA) of August 16, 1941, extends the benefits of the 

LHWCA to employees working outside the continental United States under certain 

circumstances set out in jurisdictional provisions. Primarily it covers all private 

employment on U.S. military bases overseas, land used for military purposes on U.S. 

territories and possessions, and U.S. Government contracts overseas.

The Nonappropriated Fund Instrumentalities Act of June 19, 1952, covers civilian 

employees in post exchanges, service clubs, etc. of the Armed Forces.

The Outer Continental Shelf Lands Act of August 7, 1953, extended Longshore 

benefits to employees of firms working on the outer continental shelf of the 

United States, such as off-shore drilling enterprises engaged in exploration for and 

development of natural resources.

The District of Columbia Workmen’s Compensation Act (DCCA), passed by Congress 

on May 17, 1928, extended the coverage provided by the Longshore Act to private 

employment in the District of Columbia. Since the District of Columbia passed its 

own workers’ compensation act effective July 26, 1982, OWCP handles claims only for 

injuries prior to that date.

The original law, entitled the Longshoremen’s and Harbor Workers’ 

Compensation Act, provided coverage to certain maritime employees injured while 

working over navigable waters. These workers had been held excluded from state 

workers’ compensation coverage by the Supreme Court (Southern Pacific Co. v. Jensen, 

244 U.S. 205 (1917)).
31

Longshore and Harbor Workers’ Compensation Act

Operations

Disability compensation and medical benefits 

paid by insurers and self-insurers under LHWCA 

and its extensions totaled $782.3 million in 

Calendar Year (CY) 2007, a 6.2 percent increase 

compared to CY 2006.

In Fiscal Year (FY) 2008, total DOL 

expenditures for program operations and the 

administration of LHWCA and its extensions 

were$23.9 million, of which $10.6 million were 

the direct costs of OWCP. The remaining $13.3 

million represents the cost of legal, audit, and 

investigative support provided by the Office of 

AdministrativeLaw Judges (OALJ), the BRB, 

the Office of the Solicitor, and the Office of the 

Inspector General. 

At year’s end, the Division of Longshore 

and Harbor Workers’ Compensation (DLHWC) 

employed 97 people in the national office and 11 

district offices.

During FY 2008, approximately 560 selfinsured employers and insurance carriers reported 

29,170 lost-time injuries under the LHWCA. At 

year’s end, 14,365 maritime and other workers 

were in compensation payment status.

The conflicts in Iraq, Afghanistan, and 

related military activities in the Middle East 

continued to generate interest in Longshore 

program operations as they relate to the 

administration of the DBA in FY 2008. Injuries 

occurring under DBA are reported to DLHWC 

District Offices determined by the geographic 

location of the injury occurrence. To address 

the high volume of DBA cases and reduce the 

anticipated growth in claims backlog in the New 

York District Office, the Longshore program began 

redistributing the Middle East DBA workload 

among all its district offices in FY 2008. During 

the year, a total of 11,367 cases of injury and death 

were reported under DBA.

Longshore Special Fund

The Special Fund under the LHWCA was 

established in the Treasury of the United 

States pursuant to section 44 of the Act and is 

administered by the national office of DLHWC. 

Proceeds of the fund are used for payments 

under section 10(h) of the LHWCA for annual 

adjustments in compensation for permanent 

total disability or death that occurred prior to the 

effective date of the 1972 amendments, under 

section 8(f) for second injury claims, under section 

18(b) for cases involving employer insolvency, 

under sections 39(c) and 8(g) for providing 

rehabilitation assistance to persons covered under 

the LHWCA, and under section 7(e) to pay the 

cost of medical examinations.
32

The Special Fund is financed through 

fines and penalties levied under the LHWCA; 

$5,000 payments by employers for each instance 

in which a covered worker dies and when 

it is determined that there are no survivors 

eligible for benefits; interest payments on Fund 

investments; and payment of annual assessments 

by authorized insurance carriers and self-insurers. 

Fines, penalties, and death benefit levies constitute 

a small portion of the total amount paid into the 

Special Fund each year. The largest single source 

of money for the fund is the annual assessment.

A separate fund under the DCCA is also 

administered by OWCP. Payments to and from 

this fund apply only to the DCCA.

The LHWCA Special Fund paid $126.9 

million in benefits in FY 2008, of which $116.9 

million was for second injury (section 8(f)) claims. 

FY 2008 expenditures from the DCCA Special 

Fund totaled $10.0 million, of which $9.1 million 

was for second injury cases.

Government Performance 

Results Act

In FY 2008, DLHWC revised the baseline for the 

following indicator under the DOL strategic goal 

to “minimize the human, social, and financial 

impact of work-related injuries for workers and 

their families”: 

For average time required to resolve disputed 

issues in LHWCA program contested cases, 

the FY 2008 baseline is 239 days. Targets for the 

following years will be established using this 

result.

This indicator is intended to measure 

OWCP’s success in resolving claim disputes 

between injured workers and their employers 

and insurers. Dispute resolution is one of the 

core missions of the Longshore program. While 

not a judge or a hearing officer, a Longshore 

claims examiner contributes to the resolution 

of disputed issues by acting as a mediator in 

informal proceedings designed to help parties to 

a claim reach amicable agreement and thereby 

avoid the time and expense required by formal 

litigation. In FY 2008, the district offices conducted 

2,885 informal conferences that were designed to 

establish the facts in each case, define the disputed 

issues and the positions of the parties in respect 

to those issues, and encourage their voluntary 

resolution by means of agreement and/or 

compromise.

OWCP continues to provide its claims 

staff with additional training to improve 

mediation skills and case management strategies 

to shorten the time required to resolve disputes.

Performance Assessment

In response to the recommendations from the 

2005 Program Assessment Rating Tool (PART), 

the Longshore program completed action to 

re-baseline and develop out-year targets for 

the dispute resolution measure and added an 

improvement plan to create two new performance 

measures to track and measure benefit facilitation. 

The results of an independent study completed 

in FY 2006 by a private consulting firm, SRA 

Corporation, included recommendations for 

extensive upgrades to the automated claims 

management system to improve benefit tracking 

and allow benchmarking against workers’ 

compensation programs in various states. The 

program continues to evaluate means to update 

its automated systems. A second study completed 

at the end of FY 2007 with the same contractor 
33

Longshore and Harbor Workers’ Compensation Act

evaluated the overall effectiveness and efficiency 

of the program. Longshore has completed SRA’s 

recommendations to further expand the number 

of offices that handle Middle East DBA cases 

by redistributing DBA cases to all district offices 

based on the claimant’s current address and 

computerized tracking of the movement of cases 

in and out of the district offices. The remaining 

recommendations are under review and 

evaluation by the program for implementation.

Based on the PART evaluation and in 

reaction to the submission of legislative reform 

proposals by industry, the program continues 

its evaluation of the statute with the intention of 

submitting any requested responses or technical 

assistance. Although industry-submitted 

legislation was not acted upon in FY 2008, future 

industry proposals are anticipated.

DLHWC program performance, as 

measured by GPRA outcome metrics, quarterly 

reviews of district office performance, and periodic 

accountability reviews, continues to be excellent.

Claims Management and 

Compliance Assistance 

Activities

The number of DBA injury and death reports 

of civilian contractors in Iraq and Afghanistan 

continued at its elevated level in FY 2008, with 

cases totaling 9,494, of which 225 involved the 

death of a worker. Between FY 2003 and FY 

2008, a total of 39,423 DBA cases were reported, 

including 1,545 deaths, of which 30,769 cases (1,384 

deaths) originated in Iraq and Afghanistan.

The Longshore program continued its 

efforts to address issues and questions about the 

ongoing increases in DBA claims arising from 

Iraq and Afghanistan. The staff has worked 

diligently to address such issues as the effective 

handling of Post-traumatic Stress Disorder claims 

and the challenges of managing the claims of 

Iraqi nationals in a nation with complex cultural 

differences, communications challenges, banking 

and infrastructure difficulties, and lack of available 

medical care. The major participants, including 

insurance companies and contracting agencies, 

were invited to meetings throughout the year to 

discuss and resolve these issues in advance of their 

becoming major problems. 
34

In response to the burgeoning number 

of DBA claims, DLHWC has continued the 

distribution of claims from Iraq and Afghanistan 

from the New York City District Office, which in 

the past handled all claims from that region, to the 

district office closest to the claimant’s residence. 

Without this management step, the New York 

office would have quickly become overwhelmed 

by the workload, and customer service would 

have deteriorated.

Additionally, the quickly escalating 

number of Freedom of Information Act requests, 

Congressional inquiries, requests for data and 

analysis, media questions, and submissions 

from contracting agencies, contractors, insurers, 

attorneys, and claimants continued at very high 

levels, requiring prioritization.

The Longshore program’s efforts to 

enhance its Compliance Assistance to the public 

continued in FY 2008, with more information 

added to its website, continued local surveys 

of industry to identify pockets of coverage 

compliance deficiencies, and public speaking 

at many conferences and seminars around the 

country.

Rehabilitation Reforms

During FY 2008, DLHWC began relying on 

the new rehabilitation performance measure to 

provide a new perspective on the work of the 

district office rehabilitation specialists in their 

efforts to recruit claimants to participate in the 

rehabilitation program; to shepherd participants 

successfully through evaluation, planning, and 

service provision; and to focus efforts on successful 

job placement. The program exceeded its 

vocational rehabilitation goal in FY 2008 with 54.6 

percent of rehabilitation plan completers returning 

to work within 60 days against a target of 51.2 

percent, despite significant challenges in the job 

market.

The rehabilitation pilot project in the 

Jacksonville District Office continued through 

the fiscal year, although the initial results were 

not impressive. The effort was intended to use 

financial incentives to improve the return-towork outcome in the program but, in fact, the 

preliminary results appeared to be increased costs 

with no change in the outcome.

Litigation

During FY 2008, the courts of appeals published 

six decisions, and the Benefits Review Board (BRB) 

twenty-two decisions, that discussed issues arising 

under the LHWCA or its extensions. Important 

points from some of these cases are summarized 

below.

Cou

Attorney Fees for Obtaining Additional 

Compensation Under 33 U.S.C. § 914(f). The 

Ninth Circuit agreed with the Fourth Circuit and 

held that a claimant’s attorney may receive a fee 

for services performed in obtaining additional 

compensation for the claimant pursuant to 33 

U.S.C. § 914(f) based on the employer’s failure 

to pay the compensation due within ten days 

after filing and service of a compensation order. 

Tahara v. Matson Terminals, Inc., 511 F.3d 950 

(9th Cir. 2007). The Ninth and Fourth Circuits 

therefore disagree with the Second Circuit as to 

the claimant’s attorney’s entitlement to a fee. The 

LHWCA shifts liability for a claimant’s attorney 

fee to the employer if the employer declines to 

pay compensation and the claimant, represented 
35

Longshore and Harbor Workers’ Compensation Act

by counsel, successfully prosecutes his claim. 33 

U.S.C. § 928(a). The Court held that the award 

of twenty percent additional compensation 

under section 14(f) is an award of compensation 

for purposes of 33 U.S.C. § 928(a) and therefore 

affirmed the district court’s award of a claimant’s 

attorney fee to be paid by the employer. In so 

holding, the Court considered the plain language 

of section 914(f), its legislative history, and its 

purpose of encouraging the prompt payment of 

awards.

Attorney Fees – 33 U.S.C. § 928(a). The Sixth 

Circuit held that a claimant’s counsel is not entitled 

to receive a fee for work performed on a LHWCA 

claim before the employer controverts the claim. 

Day v. James Marine, Inc., 518 F.3d 411 (6th Cir. 2008) 

(Rogers, J., dissenting). Section 928(a) provides 

that a claimant’s attorney fee liability shifts to 

the employer if the employer declines to pay 

compensation within thirty days after receiving 

written notice of the claim and the claimant “shall 

thereafter have utilized the services of an attorney” 

to secure a compensation award. 33 U.S.C. § 

928(a). A majority of the panel held that the word 

“thereafter” imposes a temporal point before 

which the employer is not liable for a fee; fee 

liability attaches only to attorney work performed 

after the employer controverts the claim. In 

so holding, the majority rejected the Director’s 

position that once fee liability is found to have 

shifted to an employer, the claimant’s attorney 

is entitled to a reasonable fee for necessary work 

performed prior to the employer’s controversion 

of the claim.

Timeliness – 33 U.S.C. § 913(a). The Third Circuit 

held that the one-year statutory period for filing 

a timely claim does not commence until the 

claimant is fully aware of the connection between 

his condition and a work-related injury. C & C 

Marine Maintenance Co. v. Bellows, 538 F.3d 293 

(3rd Cir. 2008). In this case, the employee suffered 

chemical burns to his ankle in a work-related 

accident; two years later, a physician informed 

the claimant’s attorney that the chemical burns 

could have aggravated pre-existing degenerative 

changes in his ankle. The Court held that the 

claimant was not aware of the full extent of 

the harm caused by the work injury until the 

physician informed his attorney of the possible 

connection. Because the claimant filed within one 

year of learning this information, the Court held 

the claim was timely filed.

Invocation of the Presumption and Secondary 

Medical Conditions – 33 U.S.C. § 920(a). The Fifth 

Circuit held that a secondary medical condition is 

causally connected to the primary work-related 

injury for purposes of invoking the section 920(a) 

presumption only if the claimant proves the 

secondary condition is the natural or unavoidable 

result of the primary injury. Amerada Hess Corp. 

v. Director, OWCP (Dover), 543 F.3d 755 (5th Cir. 

2008) (Reavley, J., concurring). Here, the employee 

injured his back at work. He received steroid 

injections as part of his treatment and eventually 

sustained significant weight gain, hypertension, 

and heart attacks. Based solely on lay testimony 

concerning the timing of the steroid treatment and 

the secondary cardiac problems, an ALJ found 

the claimant’s heart condition could have arisen 

from the steroid treatment and invoked the section 

920(a) presumption as to this secondary condition. 

The Court vacated the ALJ’s finding. Holding that 

the section 920(a) presumption applied only to 

the claim for the back injury, the Court concluded 

that the ALJ erroneously applied the presumption 

to the secondary condition. Instead, the Court 
36

required a separate determination, without the 

benefit of the statutory presumption, as to whether 

the claimant’s cardiac condition “naturally or 

unavoidably” resulted from the back injury. The 

Court also suggested that expert medical evidence 

might be necessary to establish the required 

connection.

LHWCA Exclusivity, Third-Party Tort Claims 

– 33 U.S.C. §§ 905(b) and 933. The Fifth Circuit 

held that the LHWCA did not preempt an injured 

shipyard worker’s state negligence claim against 

a vessel’s owner as a third-party for injuries 

sustained in the course of employment because 

the worker could not recover from the vessel 

owner under section 905(b) and section 933 

expressly preserves all claims against third parties. 

McLaurin v. Noble Drilling (U.S.), Inc., 529 F.3d 285 

(5th Cir. 2008). The claimant, an employee of a 

shipyard, was injured while working on a vessel 

owned by Noble Drilling; the injury occurred on 

land away from the vessel. The claimant sued 

the vessel owner for negligence. The district 

court dismissed the section 905(b) suit because 

the injury occurred on land, and the remaining 

negligence claims on the theory that section 905 

provided the exclusive remedy against the vessel 

owner. The Fifth Circuit affirmed dismissal of 

the section 905(b) claim because an injury on 

land does not invoke “maritime” jurisdiction but 

reversed as to the unavailability of the tort action. 

Because a section 905(b) “maritime tort” must 

occur on navigable waters, the Court held that the 

claimant’s section 905(b) action failed. The Court 

reversed the district court’s determination that the 

exclusivity provision of section 905 preempted 

any other tort action, however. It reasoned that 

the vessel owner’s status was irrelevant; the 

determinative issue was the type of negligence the 

claimant alleged and the duty the owner owed 

the claimant. The Court held that section 933 

preserves a claimant’s ability to pursue tort claims 

against a vessel owner as a third-party tortfeasor 

regardless of the section 905 exclusivity provision.

Manifest Requirement for Employer’s Relief 

from Liability – 33 U.S.C. § 908(f). To be eligible 

for section 908(f) relief, an employer must prove 

that its employee’s pre-existing disability was 

manifest. An employer can satisfy the manifest 

requirement by demonstrating that it had either 

actual or constructive knowledge of the preexisting disability. Constructive knowledge can be 

established by showing that the employer could 

have discovered the disability by looking at an 

employee’s medical records. In this case, the Third 

Circuit held that the employer failed to meet its 

burden to prove that the disability was manifest 

when it argued that medical records must exist 

although it failed to produce them. C & C Marine 

Maintenance Co. v. Bellows, 538 F.3d 293 (3rd Cir. 

2008). 
37

Longshore and Harbor Workers’ Compensation Act

Benefi

DBA – “Zone of Special Danger” and 33 

U.S.C. § 920(a). Defense Base Act (DBA) cases 

comprised an increased percentage of the BRB’s 

workload. The BRB held that a claimant’s injury 

was covered by the DBA as it occurred “in the 

course of employment” and within the “zone of 

special danger,” despite the fact it resulted from 

personal misconduct and was not the direct result 

of his employment. N.R. v. Halliburton Services, 42 

BRBS 56 (2008) (McGranery, J. dissenting). In this 

case, the claimant terminated his employment 

in Afghanistan and requested transportation to 

the United States. An altercation ensued over the 

proposed transportation, and the claimant was 

injured when he refused to comply with military 

police orders. The ALJ found that the claimant 

did not invoke the section 920(a) presumption 

because these facts did not bring him within the 

DBA’s “zone of special danger.” Specifically, 

the ALJ found that claimant’s own conduct in 

resisting lawful authority caused his injury, and 

that his actions “so thoroughly disconnected” him 

from his employment that the injury did not arise 

out of, or in the course of, that employment. The 

BRB reversed. It rejected the ALJ’s reliance on 

the claimant’s fault in causing his injury and the 

lack of any direct connection between the injury 

and his employment. The BRB held, as a matter 

of law, that the claimant’s injury came within 

the “zone of special danger” because the injury 

originated due to conditions of his employment 

and that employment placed him within an 

environment of unique risks.

Liability of Corporate Officers For Failure to 

Secure the Payment of Compensation – 33 

U.S.C. § 938. In a case of first impression, the BRB 

held that an ALJ erroneously reopened an issue 

concerning corporate officer liability at the hearing 

after issuing pre-hearing orders disposing of it. 

E.B. v. Atlantico, Inc., 42 BRBS 40 (2008). In prehearing orders, the ALJ denied motions to dismiss 

filed by two corporate officers of an uninsured, 

bankrupt employer based on evidence supplied 

by the Director. At the hearing, the ALJ stated he 

would dismiss the officers because no evidence 

supported their individual liability under 33 U.S.C. 

§ 938. The ALJ denied the claimant’s motion 

to reopen the record and accept the documents 

previously submitted by the Director; he thereafter 

dismissed all four corporate officers. The BRB 

vacated the ALJ’s dismissal. It held that the ALJ 

erroneously reopened the corporate officer liability 

issue without notice to the parties and after having 

issued dispositive pre-hearing orders denying 

dismissal. The BRB further held that the ALJ 

abused his discretion in refusing to reopen the 

record for receipt of evidence bearing on an issue 

he had unilaterally reopened. 

Sufficient Audiogram to Establish Pre-existing 

Permanent Partial Disability – 33 U.S.C. § 

908(f). In two separate cases, the BRB held that 

an employer may support its application for relief 

from liability pursuant to 33 U.S.C. § 908(f) with 

an audiogram even though it did not provide 

the claimant with a copy of that audiogram 

as required by the regulations. G.K. v. Matson 

Terminals, Inc., 42 BRBS 15 (2008), mot. for recon. 

den’d, unpublished, BRBS Nos. 05-0293 & 07-0643 
38

(Sept. 29, 2008); R.H. v. Bath Iron Works Corp., 42 

BRBS 6 (2008). Section 702.321 of the regulations 

requires an audiogram to comply with 20 C.F.R. § 

702.441 in order to constitute evidence of a preexisting hearing loss for purposes of section 908(f). 

20 C.F.R. § 702.321(a). Section 702.441 requires 

that in order for an audiogram to be deemed 

“presumptive” evidence of hearing loss, a copy 

of the audiogram and the interpretive report 

must be provided to the employee. 20 C.F.R. § 

702.441(a)(2). In both cases, the employer relied 

on an audiogram to establish the employee’s 

hearing loss, but did not provide the employee 

with a copy of the audiogram or the interpretive 

report. The BRB concluded that the employer’s 

failure to provide the employee with a copy of 

the audiogram did not preclude the employer 

from relying on it for purposes of section 908(f) 

relief. Rather, the employer need only submit 

audiograms that are reliable and probative 

evidence in order to support a section 908(f) 

request.

Suspension of Compensation for Failure to 

Attend Independent Medical Examination – 

33 U.S.C. § 907(f). The BRB held that only the 

adjudicator before whom a claim is pending is 

authorized to suspend compensation payments 

if the claimant refuses to attend an independent 

medical examination (IME) scheduled by the 

district director. L.D. v. Northrop Grumman Ship 

Systems, Inc., 42 BRBS 1 (2008), mot. for recon. den’d, 

42 BRBS 46 (2008). Here, the district director 

scheduled the claimant for an IME and selected 

a physician to perform the examination. 33 

U.S.C. § 907(e). The claimant refused to attend 

the examination, alleging that the physician was 

not qualified because he had received payments 

from the employer for workers’ compensation 

examinations within the past two years. The 

claimant argued that the physician was therefore 

prohibited from performing an IME by statute: 

33 U.S.C. § 907(i). The district director transferred 

the claim to OALJ for a hearing, and thereafter 

suspended the claimant’s compensation for the 

duration of his refusal to attend the IME. The 

BRB vacated the district director’s suspension 

order holding that only the ALJ could suspend 

compensation while the claim was pending before 

him. On reconsideration, the BRB further held 

that the statutory suspension of “proceedings” for 

the duration of the claimant’s refusal to attend the 

IME does not prevent the BRB from reviewing an 

appeal from the order suspending compensation. 

33 U.S.C. §§ 907(f), 919(h).
39

Longshore and Harbor Workers’ Compensation Act

Longshore and Harbor Workers’ 

Compensation Act

 FY 2007 FY 

Number of Employees 

(FTE Staffing Used) 95 97

Administrative Expenditures 1 $ 12.8 M $ 12.6 M

Lost-Time Injuries Reported 33,395 29,170

Total Compensation Paid 2 $882.3 M $926.7 M

 Wage-Loss and Survivor Benefits $619.5 M $642.9 M

 Medical Benefits $262.8 M $283.8 M

Sources of Compensation Paid

 Insurance Companies 2 $367.6 M $456.8 M

 Self-Insured Employers 2 $368.7 M $325.5 M

 LHWCA Special Fund $131.9 M $126.9 M

 DCCA Special Fund $ 10.1 M $ 10.0 M

 DOL Appropriation $ 2.4 M $ 2.3 M

1 Direct administrative costs to OWCP only; excludes DOL support costs of $16.0 milli

in FY 2007 and $13.3 million in FY 2008, respectivel

2 Figures are for CY 2006 and CY 2007, respectively. Note  Total compensation pai

does not equal the sum of the sources of compensation due to the different time periods 

(CY v. FY) by which the various data are reported. For Special Fund assessment bill

purposes as required by section 44 of LHWCA, compensation and medical benef

payments made by insurance carriers and self-insured employers under the Acts are

reported to DOL for the previous calendar yea

41

Energy Employees Occupational Illness

Compensation Program Act

Introduction

Congress passed the Energy Employees Occupational Illness Compensation 

Program Act (EEOICPA or Act) in October 2000. Part B of the Act, effective on 
42

July 31, 2001, compensates current or former employees (or their survivors) of the 

Department of Energy (DOE), its predecessor agencies, and certain of its vendors, 

contractors, and subcontractors, who were diagnosed with a radiogenic cancer, chronic 

beryllium disease, beryllium sensitivity, or chronic silicosis as a result of exposure to 

radiation, beryllium, or silica while employed at covered facilities. The EEOICPA 

also provides compensation to individuals (or their eligible survivors) awarded 

benefits by the Department of Justice (DOJ) under Section 5 of the Radiation Exposure 

Compensation Act (RECA). 

Part E of the Act (effective October 28, 2004) replaced the former Part D and 

compensates DOE contractor/subcontractor employees, eligible survivors of such 

employees, and uranium miners, millers, and ore transporters as defined by RECA 

Section 5 for illnesses that are linked to toxic exposures in the DOE or mining work 

environment. 

On July 31, 2008, the Department of Labor (DOL) marked the seventh 

anniversary of its administration of the EEOICPA. DOL has served a far larger 

audience than even the proponents of the statute predicted at the time of enactment, 

and the compensation totals have far exceeded Congress’ initial expectations. From 

the program’s inception to the end of Fiscal Year (FY) 2008, the Division of Energy 

Employees Occupational Illness Compensation (DEEOIC) has awarded compensation 

and medical benefits totaling nearly $4.2 billion under both Parts B and E of the Act. 

During this time, over 44,600 employees or their families have received more than $3.9 

billion in compensation and nearly $255 million in medical expenses associated with 

the treatment of accepted medical conditions. Part B compensation has totaled more 

than $2.6 billion (since 2001) while Part E compensation was nearly $1.3 billion (since 

2005).

In FY 2008 alone, nearly 6,000 employees or their families received $484.4 million 

in Part B compensation. In addition, more than 4,700 employees or their families 

received $456.7 million in Part E compensation. A total of $71.4 million was paid in 

covered medical benefits in FY 2008 under both Parts B and E of the Act, bringing total 

benefits to more that $1 billion for the year.
43

Energy Employees Occupational Illness Compensation Program Act

Administration

The EEOICPA continues to be an 

intergovernmental activity, involving the 

coordinated efforts of four federal agencies to 

administer the Act: DOL, DOE, DOJ, and the 

Department of Health and Human Services 

(HHS). DOL has primary responsibility for 

administering the Act, including adjudication of 

claims for compensation and payment of benefits 

for conditions covered by Parts B and E.

DOE designates Atomic Weapons 

Employer (AWE) facilities and provides DOL and 

HHS with verification of covered employment 

and relevant information on exposures including 

access to restricted data. DOJ notifies beneficiaries 

who have received an award of benefits under 

RECA Section 5 of their possible EEOICPA 

eligibility and provides RECA claimants with 

information required by DOL to complete the 

claim development process.

HHS, through its National Institute 

for Occupational Safety and Health (NIOSH), 

establishes procedures for estimating radiation 

doses, develops guidelines to determine the 

probability that a cancer was caused by workplace 

exposure to radiation, establishes regulations 

and procedures for designation of new Special 

Exposure Cohort (SEC) classes, and carries out 

the actual dose reconstruction for cases referred 

by DOL. Under the Act, Congress established the 

SEC to allow eligible claims to be compensated 

without the completion of a radiation dose 

reconstruction or determination of the probability 

of causation. To qualify for compensation under 

the SEC, a covered employee must have at least 

one of twenty-two “specified cancers” and have 

worked for a certain period of time at an SEC 

facility. HHS also provides administrative services 

and other necessary support to the Advisory 

Board on Radiation and Worker Health. The 

Board advises HHS on the scientific validity and 

quality of dose reconstruction efforts and receives 

and provides recommendations on petitions 

submitted requesting additional classes of 

employees for inclusion as members of the SEC.

Benefits Under the Act

Part B. To qualify for benefits under Part B of the 

Act, an employee must have worked for DOE 

or a DOE contractor or subcontractor during a 

covered time period at a DOE facility, or have 

worked for a private company designated as a 

covered AWE or beryllium vendor. The worker 

must have developed cancer, chronic beryllium 

disease, or beryllium sensitivity due to exposures 

at a covered work site, or chronic silicosis (for 

individuals who worked in Nevada and Alaskan 

nuclear test tunnels). A covered employee who 

qualifies for benefits under Part B may receive a 

one-time lump-sum payment of $150,000, plus 

medical expenses related to an accepted, covered 

condition. Survivors of these workers may also be 

eligible for a lump-sum compensation payment. 

Part B also provides for payment of $50,000 to 

individuals (or their eligible survivors) who 

received an award from DOJ under Section 5 of 

the RECA.

For all claims filed under Part B of the 

Act, the employment and illness documentation 

is developed by claims staff and evaluated in 

accordance with the criteria in the EEOICPA 

and relevant regulations and procedures. DOL 

district offices then issue recommended decisions 

to claimants. Claims filed under Part B for the 

$50,000 RECA supplement are the least complex, 

involving verification by DOJ that a RECA award 

has been made and documentation of the identity 

of the claimant (including survivor relationship). 
44

DOL can also move quickly on cases involving 

“specified cancers” at SEC facilities because the Act 

provides a presumption that any of the twentytwo listed cancers incurred by an SEC worker was 

caused by radiation exposure at the SEC facility. 

For cases involving claimed cancers that are not 

covered by SEC provisions (that is, either cancers 

incurred at a non-SEC facility, a non-specified 

cancer incurred at an SEC facility, or an employee 

who did not have sufficient employment duration 

to qualify for the SEC designation), there is an 

intervening step in the process to determine 

causation called “dose reconstruction.” In these 

instances, once DOL determines that a worker 

was a covered employee and that he or she had a 

diagnosis of cancer, the case is referred to NIOSH 

so that the individual’s radiation dose can be 

estimated. After NIOSH completes the dose 

reconstruction and calculates a dose estimate for 

the worker, DOL takes this estimate and applies 

the methodology promulgated by HHS in its 

probability of causation regulations to determine 

if the statutory causality test is met. The standard 

is met if the cancer was “at least as likely as not” 

related to covered employment, as indicated by a 

determination of at least a 50 percent probability.

Part E. EEOICPA’s Part E establishes a system 

of federal payments for employees of DOE 

contractors and subcontractors (or their eligible 

survivors) for illnesses determined to have 

resulted from exposure to toxic substances at a 

covered DOE facility. Uranium miners, millers, 

and ore transporters as defined by Section 5 of the 

RECA may also receive Part E benefits. Benefits 

are provided for any illness if it can be determined 

that it was “at least as likely as not” that exposure 

to a toxic substance was a significant factor in 

causing, contributing to, or aggravating the illness 

or death of an employee. Additionally, the Act 

provides that any determination made under Part 

B to award benefits (including RECA Section 5 

claims), is an automatic acceptance under Part E 

for causation of the illness, where the employment 

criteria is also met. The maximum payable 

compensation under Part E is $250,000 for all 

claims relating to any individual employee.

Under Part E, a covered employee may 

also be eligible to receive compensation for the 

varying percentage of impairment of the whole 

person that is related to a covered illness. The 

Act specifically requires that impairment be 

determined in accordance with the American 

Medical Association’s Guides to the Evaluation 

of Permanent Impairment (AMA’s Guides). 

Impairments included in ratings are those that 

have reached maximum medical improvement 

(MMI), i.e., they are well-stabilized and unlikely 

to improve substantially with or without medical 

treatment. MMI is not required if an illness is in a 

terminal or progressive stage. Eligible employees 

receive $2,500 for each percentage point of 

impairment found to be attributable to a covered 

illness under Part E.

Also under Part E, covered employees 

may be eligible to receive compensation for wageloss. Wage-loss is based on each qualifying year 

(prior to normal Social Security Administration 

retirement age) in which, as a result of the 

covered illness, an employee’s earnings fell a 

specific percentage below his or her average 

annual earnings for the 36-month period prior 

to suffering wage-loss (not including periods of 

unemployment). The Act provides that covered, 

eligible employees may receive $15,000 for any 

year in which they made less than 50 percent of 

their pre-disability average annual wage, as a 

result of a covered illness, and $10,000 for any year 

in which they made more than 50 percent but 

less than 75 percent of that average annual wage. 

Medical benefits for the covered condition are also 

payable, in addition to compensation.
45

Energy Employees Occupational Illness Compensation Program Act

Part E survivor benefits include a basic 

lump sum of $125,000 where it is established that 

the employee was exposed to a toxic substance 

at a DOE facility and that the exposure was 

“at least as likely as not” a significant factor in 

causing, contributing to, or aggravating the 

illness and death of the employee. Part E also 

provides $25,000 in additional benefits to eligible 

survivors, if the deceased employee had, as of 

his or her normal retirement age under the Social 

Security Act, at least ten aggregate calendar years 

of wage-loss of at least 50 percent of his or her 

average annual wage. If an employee had twenty 

or more such years, the additional amount paid 

to an eligible survivor may increase to $50,000. 

The maximum Part E compensation benefit for a 

survivor is $175,000.

Funding

DOL funding covers direct and indirect expenses 

to administer the Washington, D.C., National 

Office; five Final Adjudication Branch Offices; four 

DEEOIC District Offices in Seattle, Washington; 

Cleveland, Ohio; Denver, Colorado; and 

Jacksonville, Florida; and eleven Resource Centers 

operated by a contractor. A private contractor 

processes medical bills to reduce overhead and 

to increase program efficiency. In FY 2008, DOL 

spent $50.5 million under Part B and $56.1 million 

under Part E to administer EEOICPA. These 

funds supported 299 full-time equivalent (FTE) 

staff for Part B and 244 FTE for Part E. Under Part 

B in FY 2008, additional funding in the amount 

of $55.4 million was passed through DOL to 

support activities at NIOSH. The NIOSH portion 

included $4.5 million in funds for the radiation 

dose reconstruction process and support of the 

Advisory Board on Radiation and Worker Health. 

Under Part E, $0.8 million in additional funds 

were used to support an Ombudsman position.

Adjudication of Claims

In FY 2008, DEEOIC continued to receive a 

substantial number of new claims, creating a total 

of 5,462 new cases (7,794 new claims) for living or 

deceased employees under Part B and 6,313 new 

cases (8,373 new claims) under Part E. Each case 

represents an employee whose illness is the basis 

for a claim; however, a single case may contain 

multiple survivor claims. Under the Act, workers 

or their survivors may qualify for Part B benefits 

only, Part E benefits only, or benefits under both 

Parts B and E. 

Under the Act, the Secretary of HHS is 

responsible for adding new classes of employees 

to the SEC where dose reconstruction cannot be 

done by NIOSH. The Act initially designated 

four sites (the three gaseous diffusion plants 

in Oak Ridge, Tennessee; Paducah, Kentucky; 

and Portsmouth, Ohio; and an underground 

nuclear test site on Amchitka Island, Alaska) as 

belonging to the SEC. As of September 30, 2008, 

NIOSH had added 35 additional SEC classes 

to the four statutory classes, which combined, 

represent workers at 31 facilities. During FY 2008, 

NIOSH added 10 SEC classes at the following 

facilities: Combustion Engineering in Windsor, 

Connecticut; Hanford Engineer Works (200 & 

300 Areas) in Richland, Washington; Horizons, 

Inc. in Cleveland, Ohio; Kellex/Pierpont in Jersey 

City, New Jersey; Lawrence Livermore National 

Laboratory (LLNL) in Livermore, California; 

Mound Plant in Miamisburg, Ohio; Nuclear 

Materials and Equipment Corporation (NUMEC) 

in Parks Township, Pennsylvania; SAM 

Laboratories, Columbia University, New York, 

New York; Spencer Chemical in Pittsburg, Kansas; 

and the Y-12 Plant in Oak Ridge, Tennessee. 

When a new SEC class is identified, DOL reviews 

all affected cases to determine if the employee in 

question meets the new criteria. Any previously 
46

denied claim with employment meeting the new 

definition is reopened for additional development 

and a new recommended decision.

In addition to the added SEC classes, 

NIOSH also at times issues modifications to the 

underlying scientific rationale for performing a 

dose reconstruction based on further research 

into the etiology of specific cancers and issues 

changes in instructions for completing dose 

reconstructions for particular groups of employees 

and facilities. These modifications are issued in 

the form of a Program Evaluation Report (PER) 

and Program Evaluation Plan (PEP). Whenever 

a PER or PEP is issued, DOL works with NIOSH 

to identify all cases affected by the changes and, 

where necessary, reopens claims for new dose 

reconstructions to be performed. This process has 

led to the review of several thousand cases with 

DOL returning over 4,000 cases to NIOSH for 

rework.

For claims filed under Part E, claims 

examiners use an array of tools including the Site 

Exposure Matrices (SEM) database that provides 

information about substances commonly used 

in DOE facilities and the types of occupational 

illnesses and health effects associated with 

exposure to toxic substances. District offices also 

rely on DOE’s records that contain employees’ 

radiological dose records, incident or accident 

reports, industrial hygiene or safety records, 

personnel records, job descriptions, medical 

records, and other records that prove useful in 

determining causation. Additionally, a referral 

to a District Medical Consultant (DMC) may 

be required to determine a medical diagnosis, 

whether or not an illness is indicative of toxic 

substance exposure versus a natural medical 

process, whether there is a causal relationship 

between all claimed conditions and the 

occupational exposure history, or to evaluate an 

employee’s cause of death. DMC referrals may 

also be necessary for impairment evaluations and 

for opinions regarding the causal relationship 

between a covered illness and claimed wageloss. As of September 30, 2008, 88 DMCs were 

providing services to the program, and in FY 

2008, DEEOIC processed a total of 6,126 referrals 

to DMCs. Additionally, claims are sometimes 

referred to a health physicist, industrial hygienist, 

or a toxicologist when a scientific determination 

regarding the case is required. In FY 2008, DOL’s 

health physicists, industrial hygienists, and 

toxicologists received and reviewed 42 technical 

objections, 148 exposure referrals, and 631 rework 

requests on case files.

Recommended Decisions and Final Decisions. 

The DEEOIC district offices issue recommended 

decisions to claimants, recommending either 

acceptance or denial of claims. The Final 

Adjudication Branch (FAB) provides reviews 

of each recommended decision made by the 

district office to ensure that the Act’s requirements, 

program policies, and procedures are followed. 

The FAB also considers challenges brought forth 

by claimants through reviews of the written 

record or oral hearings. For each claim, the FAB 

reviews the evidence of record, the recommended 

decision, and any objections/testimony submitted 

by the claimant and issues a final decision either 

awarding or denying benefits. The FAB may also 

remand a decision to the district office if further 

development of the case is necessary. Additionally, 

claimants may challenge the FAB’s final decisions 

through reconsideration and reopening processes 

or may seek review of a final decision in a U.S. 

District Court. While Part B and Part E of the 

EEOICPA each have unique eligibility criteria, 

DEEOIC adjudicates all claims for benefits 

under Parts B and E as a unified claim for greater 

efficiency and, where possible, decisions are issued 

that address both Parts B and E simultaneously. 
47

Energy Employees Occupational Illness Compensation Program Act

However, partial decisions may also be issued in 

cases where benefits under some provisions can 

be awarded, but claims under other provisions 

require further development. 

In FY 2008, DEEOIC district offices issued 

12,928 Part B claim-level recommended decisions 

and 14,066 Part E claim-level recommended 

decisions. The FAB in FY 2008 conducted 1,079 

oral hearings and issued 12,200 Part B claimlevel final decisions and 13,440 Part E claim-level 

final decisions. As of September 30, 2008, DOL 

approved benefits in 53.2 percent of Part B covered 

cases and 56.1 percent of Part E covered cases that 

were issued a final decision.

Outreach Activities

The DEEOIC continues to sponsor outreach 

activities to disseminate information about 

EEOICPA benefits and to provide one-on-one 

assistance to claimants applying for benefits.

Resource center and district office 

personnel supported the collaborative outreach 

efforts led by DEEOIC’s Branch of Outreach 

and Technical Assistance (BOTA) in the national 

office. As additional classes of employees were 

designated by the Secretary of HHS to the SEC, 

DOL sponsored seven town hall meetings and 

traveling resource centers to present details 

about the new SEC classes and to answer 

claimant questions. Further, DEEOIC sponsored 

18 town hall meetings focused on providing 

information to the Section 5 uranium worker 

community. Over 900 individuals attended these 

meetings conducted in Arizona, New Mexico, 

Texas, Wyoming, Colorado, Oklahoma, Idaho, 

Washington, Oregon, and West Virginia. As a 

result of this outreach effort, more than 200 new 

claims were filed under the Act.

Other examples of DEEOIC outreach 

activities in FY 2008 included meetings with 

local governments and chambers of commerce, 

presentations to personnel at covered facilities 

and unions, and other community initiatives. 

Additionally, in FY 2008 the district offices received 

152,280 phone calls and the FAB received 6,915 

phone calls. Nearly all calls that required a return 

call were returned within two business days.

Services to Claimants

The Departments of Labor, Health and Human 

Services, Energy, and Justice provide assistance 

to current and potential claimants and surviving 

family members to help them understand the 

EEOICPA and claimants’ rights and obligations 

under the program. DOL has implemented 

several strategies to assist workers and survivors 

in filing claims, collecting evidence to support 

claims, and understanding the adjudication 

process from start to finish:

Web Site. DEEOIC’s web site provides 

information about the statute and regulations 

governing Part B and Part E of the EEOICPA 

and gives claimants access to brochures, claim 

forms, and electronic filing of claims. The web 

site also provides the locations and times of town 

hall meetings; district office and resource center 

locations and contact numbers; press releases; 

and medical provider enrollment information. 

Additionally, claimants can view DEEOIC and 

NIOSH weekly web statistics; payments statistics 

at the national, state, and facility levels; a searchable 

database of DEEOIC final decisions; a link to Part 

E information that includes the EEOICPA Part E 

procedure manual; and all final policy bulletins 

and circulars. The site also provides links to DOE, 

DOJ, and NIOSH web sites and toll-free numbers 

where additional information and assistance can 
48

be obtained. In FY 2008, 42 policy bulletins and 

eight circulars clarifying the administration of both 

Parts of the program were posted to the site.

Expanded Role of Resource Centers. DEEOIC’s 

network of Resource Centers (RCs) at major 

DOE sites provides an initial point-of-contact 

for workers interested in the program and inperson and toll-free telephone-based assistance 

to individuals filing claims under the Act. In 

FY 2008, the RC contractor had 79 employees 

at 11 sites to help claimants complete necessary 

claim forms and gather documentation that can 

support their claims. The RCs assist with initial 

employment verification and Part E occupational 

history development and forward all claims and 

associated documentation to the appropriate 

district office. The RCs also answer claimants’ 

initial questions regarding impairment and 

wage-loss benefits. During FY 2008, The RCs 

received 103,194 telephone calls, conducted 39,552 

follow-up actions with claimants, processed 

6,966 initial employment verification requests, 

conducted 5,808 occupational history interviews, 

and made 6,152 contacts with claimants regarding 

impairment and wage-loss benefits.

In FY 2008, the RCs were given additional 

responsibilities to assist claimants with the 

medical bill process, preparation of requests for 

pre-authorized medical travel, and submission 

of claims for reimbursement related to medical 

travel. As a result of their expanded role, the RCs 

made 15,142 contacts related to medical bills. In 

addition, the RCs enrolled over 700 new medical 

providers into the program. The medical benefits 

component of the EEOICPA also was enhanced 

to include the establishment of a web portal to 

allow claimants to find medical providers who 

are enrolled in the EEOICPA program (including 

physicians, hospice centers, and home health care 

providers). In FY 2008, DEEOIC also eliminated 

the payment cap on prescriptions for accepted 

illnesses and streamlined the process for approving 

travel of over 200 miles round trip to receive 

treatment for an accepted illness.

Center for Construction Research and Training. 

In FY 2008, DEEOIC again renewed its contract 

with the Center for Construction Research and 

Training (CCRT), formerly known as the Center 

to Protect Workers’ Rights, which has been tasked 

with researching and providing employment 

information for construction/trade workers (who 

worked at DOE, AWE, or beryllium vendor 

facilities) in cases where DOL has been unable 

to obtain reliable information through available 

resources. In FY 2008, CCRT provided responses to 

more than 1,000 requests for information.

Site Exposure Matrices (SEM) Database. In FY 

2008, DEEOIC continued to enhance its database of 

“site exposure matrices” to assist claims examiners 

in determining the types of chemicals and toxic 

substances that existed at the major DOE facilities, 

easing claimants’ evidentiary burdens and 

speeding the claims process. The SEM project team 

conducted record reviews at 45 major DOE sites 

during FY 2008. In conjunction with the record 

review project, 11 roundtable meetings and 15 sets 

of telephone interviews were held with current and 

former DOE workers. As of September 30, 2008, 

the SEM database housed information on 6,846 

toxic substances/chemicals that were present at 71 

DOE sites, 4,170 uranium mines, 48 uranium mills, 

and 17 uranium ore buying stations covered under 

EEOICPA. In FY 2008, the SEM website was made 

available to the public for viewing and comment at 

www.sem.dol.gov.

In conjunction with exposure 

development, the SEM project continued working 

to improve exposure and medical data available 

in the Haz-Map website database. Haz-Map is 

a database housed by the National Library of 
49

Energy Employees Occupational Illness Compensation Program Act

Medicine (NLM) that contains a wide array of 

information regarding occupational exposure 

to hazardous agents. DOL contracted with 

the author of Haz-Map to evaluate exposure 

information obtained during covered facility 

document reviews and to upload the author’s 

analysis into Haz-Map. This effort with NLM and 

the Haz-Map database has allowed DEEOIC to 

assist in profiling hundreds of substances since the 

inception of the agreement, with over 1,640 agents 

profiled in FY 2008. This work for the SEM project 

assists DOL in developing and adjudicating 

claims filed under Part E of EEOICPA and relieves 

claimants of some of the burden of proof in their 

claims.

Database Systems. DEEOIC’s Branch of 

Automated Data Processing Systems (BAS) is 

responsible for providing DEEOIC’s internal and 

external customers an entire array of secure and 

reliable computer services and support. A major 

accomplishment for BAS was the collaborative 

effort with DOL’s Employment Standards 

Administration’s Division of Information 

Technology Management and Services (DITMS) 

to establish a comprehensive new computing 

infrastructure, setting the stage for future 

achievement of long-term DITMS strategic goals 

as well as near-term DEEOIC development of an 

integrated, modernized, and expanded missioncritical case management system. The new 

system will replace the separate Part B and Part E 

case management systems that have supported 

DEEOIC’s users since Part B (2001) and Part E 

(2004) program inception.

Among other notable achievements for 

BAS in FY 2008 were enhancements to statistical 

presentations on the DEEOIC web site and 

expansion of workload and statistical reporting 

that enabled claims personnel and managers 

to once again meet and exceed strategic and 

operational goals.

Ombudsman. Under the Defense Authorization 

Act for Fiscal Year 2005, Public Law 108-375, 42 

U.S.C. § 7385s-15, signed into law on October 28, 

2004, an Office of the Ombudsman was created for 

a period of three years to provide information to 

claimants, potential claimants, and other interested 

parties on the benefits available under Part E of 

the EEOICPA and how to obtain those benefits. In 

October 2007, the Secretary of Labor extended the 

term of this office. The Office of the Ombudsman, 

independent from OWCP, reports annually to 

Congress concerning complaints, grievances, 

and requests for assistance received during the 

calendar year covered by the report. In FY 2008, 

the Ombudsman’s 2007 Annual Report was made 

available through a link from DEEOIC’s web site, 

and DEEOIC continues to work directly with the 

Ombudsman’s office to promptly resolve any 

issues and concerns. 

Government Performance 

Results Act

DOL is committed to measuring its outcomes 

and maintaining accountability for achieving 

the fundamental goals of the Energy Employees 

Occupational Illness Compensation Program 

(EEOICP). High performance standards, focusing 

on moving EEOICP claims rapidly through the 

initial and secondary adjudication stages, have 

been established, and DOL has maintained a 

strong record of meeting its key performance goals 

under the GPRA. 

DEEOIC’s three indicators achieved under 

DOL’s GPRA goal to “minimize the human, 

social, and financial impact of work-related injuries 

for workers and their families” were as follows:

In FY 2007, EEOICP began to measure average 

days for completion of initial processing as that 

measure is a good indicator of overall effectiveness 
50

in delivering initial services to claimants. In FY 

2008, it took an average of 164 days to process 

initial claims under Part B, far better than the target 

of 226 days.

The claims processing goal under Part E also was 

improved upon, as 284 days on average were 

needed to process initial claims in FY 2008 against 

a target of 290 days.

Timely processing also extends to final decisions 

by EEOICP’s FAB. The timeliness standards for 

both Part B and Part E claims are to complete final 

decisions within 180 days where there is a hearing 

and within 75 days where there is no hearing. In 

the processing of Part B and Part E final decisions 

through the efforts of FAB, 93 percent of Part B 

and Part E decisions in FY 2008 were within the 

program standards, well in excess of the goal of 87 

percent.

Central Medical Bill Processing

The OWCP central bill processing service 

continued to provide a high level of service to 

eligible claimants and providers in FY 2008. In 

addition, DEEOIC avoided $5.6 million in costs 

during the year due to further improvements in 

the editing of bills.

Timely and accurate medical bill 

processing is critical in the administration of the 

EEOICPA. In FY 2008, Ambulatory Surgical 

Center and Modifier Level pricing enhancements 

were implemented.

By the end of FY 2008, the vendor had 

processed 109,779 EEOICPA bills and handled 

35,692 telephone calls. Authorizations for medical 

treatment were processed in an average of 1.5 

workdays and 98.3 percent of bills were processed 

within 28 days. Enrollment of 506 new providers 

brought the total of enrolled providers to 106,580.

Program Evaluation

Management Study. In FY 2008, a management 

study of the DEEOIC was completed by Omnitec 

Solutions, Inc., a private company hired to review 

the overall structure of the division. The company 

interviewed claims examiners (CE), supervisors, 

and managers in the district offices, Final 

Adjudication Branch, and national office; gathered 

information from organizational strategic planning 

documents, including mission statements, goals, 

performance metrics, workload assessments, 

training materials, bulletins, and organizational 

staffing charts; and reviewed position descriptions, 

permanent and term designations, classification 

standards, and performance standards for CE 

and senior CE positions. Omnitec Solutions, Inc. 

submitted several suggestions for improving 

program management, organizational structure, 

claims processing, workload management, cost 

analysis, communications, training, technology 

and tools, and interaction with stakeholders. The 

recommendations were reviewed by the Director 

of DEEOIC and the OWCP Director, and several 

strategies were adopted by DEEOIC in its efforts to 

continually improve program operations.

U.S. Department of Labor, Office of Inspector 

General (OIG) Evaluation. In response to several 

members of Congress and the general public, OIG 

conducted an evaluation (Report No. 04-09-002-04-

437, November 12, 2008) to:

Determine if DOL issued claim decisions that 

complied with applicable law and regulation.

Assess whether DOL ensures that claims are 

adjudicated as promptly as possible and that 

claimants are kept informed.
51

Energy Employees Occupational Illness Compensation Program Act

In its evaluation, OIG found that DOL’s 

decisions to accept or deny claims complied with 

applicable Federal law and regulations, and the 

decisions were based on the evidence provided by 

or obtained on behalf of claimants and followed 

a deliberative process with several layers of 

review to ensure that claims were substantiated 

or properly denied. OIG also found that DOL 

has made strides in reducing the processing time 

of claims for the portion of the process controlled 

by DOL. OIG assessed the validity of allegations 

from a former claims examiner that claims 

examiners had been directed to inappropriately 

deny claims and determined that these allegations 

could not be corroborated.

OIG made six recommendations to the 

Assistant Secretary, Employment Standards 

Administration (ESA), designed to further reduce 

the time required to process claims, better utilize 

Resource Centers, and increase contact with 

claimants to keep them informed of the status of 

their claims. ESA disagreed with the conclusions 

regarding the timeliness of the program in 

adjudicating claims, but did concur with most of 

the recommendations and has efforts underway 

to respond to these recommendations. The full 

report, including the scope, methodology, and full 

agency response, is available at http://www.oig.

dol.govpublic/reports/oa/2009/04-09-002-04-

437.pdf.

Program Assessment Rating Tool. In FY 2007, 

the EEOICP was assessed using the Program 

Assessment Rating Tool (PART) and received a 

rating of “adequate.” DEEOIC’s response to the 

PART’s key recommendations during FY 2008 

included:

Working with NIOSH to establish compatible 

timeliness measures that are consistent with 

program goals and reporting performance against 

those goals on an ongoing basis.

Obtaining an independent, comprehensive 

evaluation of the program. As stated previously, 

the Energy program underwent a management 

study in FY2008 to evaluate and recommend 

ways to enhance program operations, including 

an analysis of workflow, training, technology 

workload, claims processing, and organization 

and management structure. DOL’s Inspector 

General also conducted a program evaluation in 

FY 2008 and made several recommendations for 

improving the program. In addition, a customer 

satisfaction survey will be conducted in FY 2009.

Improving coordination with state workers’ 

compensation systems to prevent duplicate 

payments. DEEOIC’s cross match with the State 

of Ohio is ongoing, and procedures for obtaining 

information from claimants and the state were 

developed and will be distributed to program 

employees in FY 2009.

Litigation

DEEOIC strives in every case to administer the 

Energy program in accordance with the law and 

governing regulations. During FY 2008, one U.S. 

District Court and one U.S. Court of Appeals 

published decisions in cases arising under 

EEOICPA. Important points from these cases are 

summarized below.

Dis

In Stephens v. U.S. Department of Labor, 571 

F.Supp.2d 186 (D.D.C. 2008), the plaintiff (who had 

been awarded lump-sum compensation under 

Part B of EEOICPA for his CBD) petitioned the 

U.S. District Court for the District of Columbia 

for an order under the Administrative Procedure 

Act directing DEEOIC to determine that the Loral 
52

American Beryllium Company facility, which 

DOE had designated as a beryllium vendor 

facility, was also a “DOE facility” as defined in 

EEOICPA for the purposes of his claim for CBD 

under Part E of EEOICPA. In its order, the court 

granted summary judgment for DEEOIC and 

affirmed the November 9, 2006 and March 13, 

2007 determinations that the plaintiff was not a 

“covered DOE contractor employee” and was 

rather a “covered beryllium employee” of the 

Loral America Beryllium Company, a beryllium 

vendor, and therefore he was not eligible for Part 

E benefits. The court found that DEEOIC had 

properly recognized the eligibility issue in the 

plaintiff’s administrative claim, that it had given 

careful consideration to the many arguments 

he had raised in support of his Part E claim, and 

that it had rationally decided that he did not fit 

within the statutory definition of a covered DOE 

contractor employee because the Loral American 

Beryllium Company’s facility did not constitute 

a DOE facility, as that statutory term is defined 

in EEOICPA. Therefore, the court found that the 

November 9, 2006 and March 13, 2007 DEEOIC 

decisions were not “arbitrary and capricious” 

under 42 U.S.C. § 7385s-6(a).

Cou

In Hayward v. U.S. Department of Labor, 536 F.3d 376 

(5th Cir. 2008), the appellant sought review of a 

decision of the U.S. District Court for the Northern 

District of Texas that had affirmed DEEOIC’s final 

decision denying her claim for survivor benefits 

under Part B of EEOICPA. She argued on appeal 

that the district court erred in finding that DEEOIC 

did not act arbitrarily or capriciously when it 

refused to adjust certain default settings in NIOSHIREP, the interactive software program it uses to 

calculate the probability that various cancers were 

caused by exposure to radiation, to account for the 

rare form of prostate cancer that her late husband 

had contracted. In a July 16, 2008 decision, the 

Court of Appeals for the Fifth Circuit determined 

that the district court had properly reviewed 

DEEOIC’s final decision under the “arbitrary or 

capricious” standard set forth in § 706(2)(A) of 

the Administrative Procedure Act. Under that 

standard, the Fifth Circuit found that DEEOIC’s 

final decision fully considered the appellant’s 

objections and set forth a rational connection 

between the relevant factors and its decision to 

retain the default settings in NIOSH-IREP.
53

Energy Employees Occupational Illness

Compensation Program Act Part B Part E 1

 FY 2007 FY 2008 FY 2007

Number of Employees (FTE Staffing Used) 296 299 211 244

Administrative Expenditures 2 $ 53.1 M $ 50.5 M $ 62.5 M $ 56.1 M

Claims Created 8,709 7,794 11,090 8,373

Recommended Decisions 

 (Covered Applications) 13,326 12,928 15,928 14,066

Final Decisions (Covered Applications) 12,079 12,200 17,427 13,440

Number of Claims Approved (Final) 6,374 6,486 7,057 7,541

Total Lump Sum Compensation Payments 3 $464.4 M $484.4 M $361.7 M $456.7 M

Number of Medical Bill Payments 116,662 133,788 2,458 6,923

Total Medical Payments 4 $ 54.9 M $ 69.1 M $ 0.7 M $ 2.2 M

1 Part  became effective during FY 2005 (October 28, 2004

2 Includes Department of Labor expenditures only; Part B excludes funds apportioned to the Department of Health and Human Services for 

agency’s responsibilities under EEOICPA ($54.8 million in FY 2007 and $55.4 million in FY 2008, respectively), whil Part E excludes fund

the Office of the Ombudsman ($0.7 million in FY 2007 and $0.8 million in FY 2008, respective

3 Excludes payments made by DOL for Department of Justice (DOJ) Radiation Exposure Compensation Act (RECA) Section5 claims.

as a pass through and utilizes the compensation fund established under EEOICPA for DOJ’s payments of $100,000 to qualifying Sect

claimants as provided for in 42 U.S.C. § 7384u(d). These payments totaled $80.1 million in FY 2007 and $45.7 million in FY 2008, respective

4 Part B medical payments represent payments made for cases accepted under both Part B and Part E. PartE medical payments represent payments made for Par E on

Energy Employees Occupational Illness Compensation Program Act

55

 Page

A. FECA Tables A1 - A4 56

B. Black Lung Tables B1 - B6 60

C. LHWCA Tables C1 - C5 66

D. EEOICPA Tables D1 – D5 71

Note: Unless otherwise stated, the financial information in the appendix tables below may differ from what is 

reported in the Department of Labor’s Consolidated Financial Statement. These differences are due to accrual 

versus cash basis financial reporting requirements and adjustments made during statement compilation.

Appendix
56

 Table A-1

Federal Employees’ Compensation Rol

FY 1999 - FY 2008

(Cases at End-of-Year)

Fiscal Year

Roll Type 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

 

Total Periodic Roll 54,897 54,709 56,133 56,751 58,621 57,827 60,709 55,433 51,125 50,263

Long-Term Disability 48,957 48,870 50,409 51,092 53,099 52,377 55,257 49,910 46,258 45,604

Death 5,940 5,839 5,724 5,659 5,522 5,450 5,452 5,523 4,867 4,659
57

FECA Tables A1 — A2

Table A-2

Federal Employees’ Compensation Progr

Summary of Claims Activi

FY 1999 - FY 2008

Fiscal Year

Claim Activity 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Incoming Cases

Cases Created 166,544 174,471 165,915 158,118 168,174 162,965 151,690 139,874 134,360 134,013

Traumatic 140,383 145,915 137,877 132,250 142,325 138,521 129,427 119,082 114,592 115,715

 No Lost Time 83,472 91,620 86,402 80,439 84,368 80,018 74,071 67,127 64,896 66,812

 Lost Time 56,911 54,295 51,475 51,811 57,957 58,503 55,356 51,955 49,696 48,903

Occupational Disease 25,999 28,406 27,869 25,739 25,747 24,320 22,114 20,592 19,633 18,190

Fatal Cases 162 150 169 129 102 124 149 200 135 108

Wage-Loss Claims Initiated 19,759 21,899 23,386 23,193 24,245 24,189 21,455 19,819 19,104 19,187

Hearings and Review

Total Requests for Hearing 7,164 6,992 6,875 6,820 6,751 8,132 6,757 6,241 6,556 6,584

Total Hearing Dispositions 7,926 7,418 6,599 6,272 6,743 7,682 6,961 7,424 7,581 6,789
58

Table A-3

Federal Employees’ Compensation Program Obligatio

FY 1999 - FY 2008

($ thousands)

Fiscal Year

Type of 

Obligation 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Total 

Obligations $2,076,475 $2,170,247 $2,308,595 $2,418,364 $2,475,108 $2,568,390 $2,602,815 $2,553,930 $2,707,196 $2,800,284

Total Benefits 1,989,050 2,078,715 2,199,276 2,307,942 2,345,472 2,434,609 2,476,479 2,418,796 2,563,055 2,657,634

 Compensation 

 Benefits 1,370,206 1,403,154 1,453,740 1,509,275 1,556,845 1,600,501 1,664,405 1,621,357 1,684,248 1,736,649

 

 Medical 

 Benefits 492,835 548,596 617,414 667,797 658,121 703,571 672,006 668,205 743,124 781,594

 

 Survivor 

 Benefits 126,009 126,965 128,122 130,870 130,506 130,537 140,068 129,234 135,683 139,391

 

Total 

Administrative 

Expenditures 87,425 91,532 109,319 110,422 129,636 133,781 126,336 135,134 144,141 142,650

 Salaries and 

 Expenses 67,567 70,634 78,971 81,210 86,358 86,253 86,811 88,435 90,113 89,416

 Fair Share 19,858 20,898 30,348 29,212 43,278 47,528 39,525 46,699 54,028 53,234
59

FECA Tables A3 — A4

Table A-4

Federal Employees’ Compensation Program Chargeback Cos

by Major Federal Agenc

CBY 1999 - CBY 2008

($ thousands)

Chargeback Year 1

Federal Agency 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Total Costs $1,908,256 $2,024,634 $2,129,097 $2,219,448 $2,323,288 $2,339,782 $2,334,194 $2,440,711 $2,494,096 $2,572,864

U.S. Postal 

Service 594,503 666,310 720,518 785,199 846,876 852,945 840,141 884,078 924,138 978,629

Department of 

the Navy 240,492 241,585 246,881 248,250 245,461 245,145 237,791 244,318 244,037 242,440

Department of 

the Army 163,127 166,989 169,219 174,832 181,298 177,250 174,660 180,248 178,993 179,503

Department of 

Veterans Affairs 137,865 143,221 145,909 151,612 157,315 155,391 156,170 164,091 166,087 175,637

Department of 

Homeland Security N/A N/A N/A N/A 83,975 121,089 138,342 156,734 158,529 161,070

Department of 

the Air Force 123,349 128,134 134,106 132,538 135,509 129,229 124,516 126,663 130,298 131,059

Department 

of Justice 76,319 83,873 91,197 95,620 66,131 74,011 80,090 89,156 94,395 98,825

Department 

of Transportation 97,155 96,936 99,556 101,716 94,682 92,659 92,687 92,830 93,609 97,931

Department 

of Agriculture 59,851 64,882 66,750 69,563 72,312 69,245 68,681 70,185 70,802 72,869

Department of 

Defense 63,563 64,797 64,761 63,888 65,429 63,816 62,996 65,460 62,630 60,737

All Other 

Agencies 352,033 367,907 390,201 396,230 374,299 359,003 358,120 366,948 370,578 374,164

1 A year for chargeback purposes is from July 1 through June 30.
60

Table B-1

Part  Black Lung Claims Adjudicati

at the District Director Level

FY 2008

Type of Claim PDO’s Issued 1 Approval Rate

Trust Fund 725

Approved 114 15.72%

Denied 611

Responsible Operators 3,691

Approved 446 12.08%

Denied 3,245

Total Decisions 4,416

Total Approved 560 12.68%

Total Denied 3,856

1 PDO is “Proposed Decision and Order”.
61

Black Lung Tables B1 — B2

Table B-2

Distribution of Part 

Black Lung Claims and Disbursements, by Stat

FY 2008

Total Claims MBO Total Benefits

 State Received 1 Claims 2 In Payment 3 ($ 000) 4

Alabama 34,365 40 798 $6,494

Alaska 152 0 8 65

Arizona 2,059 5 118 960

Arkansas 3,832 7 154 1,253

California 6,474 6 206 1,676

Colorado 7,064 9 364 2,962

Connecticut 1,002 1 57 464

Delaware 781 1 53 431

District of Columbia 286 0 12 98

Florida 11,938 42 697 5,672

Georgia 1,676 4 155 1,261

Hawaii 17 0 1 8

Idaho 253 0 18 146

Illinois 31,523 33 976 7,943

Indiana 17,988 32 663 5,396

Iowa 5,147 4 196 1,595

Kansas 2,179 1 51 415

Kentucky 93,682 632 4,470 36,380

Louisiana 349 0 15 122

Maine 45 0 4 32

Maryland 6,672 17 314 2,555

Massachusetts 238 1 15 122

Michigan 10,515 11 355 2,889

Minnesota 145 0 5 41

Mississippi 367 1 22 179

Missouri 4,650 2 151 1,229

Montana 856 2 27 220

Nebraska 130 0 6 49

Nevada 434 1 31 252

New Hampshire 27 0 7 57

New Jersey 4,309 8 224 1,823

New Mexico 2,426 1 103 838

New York 4,034 7 177 1,440

North Carolina 3,542 21 302 2,458

North Dakota 159 0 4 32

Ohio 54,023 92 2,362 19,222

Oklahoma 3,790 8 115 936

Oregon 629 0 28 228

Pennsylvania 137,313 462 8,905 72,473

Rhode Island 40 0 2 16

South Carolina 950 8 108 879

South Dakota 51 0 4 32

Tennessee 21,339 97 946 7,699

Texas 1,743 2 97 789

Utah 4,146 11 220 1,790

Vermont 49 0 4 32

Virginia 44,375 366 3,190 25,961

Washington 1,592 3 54 439

West Virginia 112,498 647 6,608 53,779

Wisconsin 454 0 28 228

Wyoming 2,628 0 128 1,042

All Other 449 1 16 130

TOTAL 645,385 2,586 33,574 $273,232

1 All filings since July 1, 1973, including terminated and nonapproved claims.

2 Active Medical Benefits Only (MBO) claims as of 9/30/08.

3 Active claims in payment status, excluding MBO claims, as of 9/30/08.

4 Disbursements of income and medical benefits for all claims, including claims 

paid by the Trust Fund and claims in interim pay status.

Note: Data in column no. 1 may not be consistent with changes from previous years due 

to a change in computer systems.
62

Table B-3

Part  Black Lung Claims, by Class of Benefici

FY 1999 - FY 2008 1

Number of Beneficiaries 2

Class of Beneficiary 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Primary Beneficiaries:

Miners 24,838 22,568 18,248 16,395 14,773 13,398 12,012 10,857 9,744 8,654

Widows 40,517 39,053 35,660 34,236 32,615 30,810 29,110 27,366 25,556 23,690

Others 1,508 1,497 1,467 1,221 1,238 1,247 1,248 1,258 1,241 1,230

Total Primary Beneficiaries 66,863 63,118 55,375 51,852 48,626 45,455 42,370 39,481 36,541 33,574

Dependents of Primary 

Beneficiaries:

Dependents of Miners 19,953 17,978 13,924 12,432 11,131 10,020 9,004 8,088 7,205 6,442

Dependents of Widows 1,384 1,306 1,123 1,077 1,052 1,006 944 874 840 777

Dependents of Others 516 508 108 386 353 238 213 146 140 132

Total Dependents 21,853 19,792 15,155 13,895 12,536 11,264 10,161 9,108 8,185 7,351

Total, All Beneficiaries 88,716 82,910 70,530 65,747 61,162 56,719 52,531 48,589 44,726 40,925 

1 As of September 30 of each year.

2 Active claims, including those paid by a RMO, cases paid by the Trust Fund, 

cases in interim pay status, cases that are being offset due to concurrent Federal 

or state benefits, and cases that have been temporarily suspended. Does not 

include MBO beneficiaries.
63

Black Lung Tables B3 — B4

Table B-4

Department of Labor Part  Black Lung Benefits Program Obligation

FY 1999 - FY 2008

($ thousands)

Fiscal Year

Type of 

Obligation 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Total 

Obligations $1,005,246 $1,013,593 $1,016,994 $1,034,096 $1,046,303 $1,053,246 $1,061,698 $1,060,006 $1,068,295 $1,070,958

Total 

Benefits 1 439,442 422,656 396,928 384,234 370,389 346,864 329,933 307,067 291,310 273,232

 Income 

 Benefits 2 363,871 350,266 336,813 320,039 307,371 292,555 279,965 265,365 252,020 235,347

 Medical 

 Benefits 3 75,571 72,390 60,116 64,196 63,018 54,309 49,968 41,702 39,290 37,885

Administrative 

Costs 4 50,788 49,820 52,252 54,273 55,332 55,803 56,872 57,975 59,772 58,257

Interest 

Charges 5 515,016 541,117 567,814 595,589 620,582 650,579 674,894 694,964 717,214 739,469

Repayable 

Advances 6 402,000 490,000 505,000 465,000 525,000 497,000 446,000 445,000 426,000 426,000

Cumulative 

Debt 7 $6,258,557 $6,748,557 $7,253,557 $7,718,557 $8,243,557 $8,740,557 $9,186,557 $9,631,557 $10,057,557 $10,483,557

1 Excludes collections from responsible mine operators for benefits paid by Trust 

Fund on an interim basis, refunds for OWCP administrative costs paid, and other 

miscellaneous reimbursements.

2 Monthly and retroactive benefit payments.

3 Includes diagnostic and treatment costs, and reimbursements to the Centers 

for Medicare & Medicaid Services of the Department of Health and Human 

Services and the Health and Retirement Funds of the UMWA.

4 Administrative expenses include reimbursements to SSA.

5 Starting in 1979, the Trust Fund had to borrow funds from the Treasury 

Department to pay operating costs not covered by revenues. Interest charges 

reflect the cost to the Trust Fund for those advances from the Treasury.

6 Reflects advances from the Treasury Department during the fiscal year.

7 Shows the cumulative debt of the Trust Fund to the Treasury.

Note: Detail may not add to totals due to rounding.
64

Table B-5

Monthly Part  Black Lung Benefit Rate

1973 - 2008

Benefit Rates by Type of Beneficiary 

Claimant and Claimant and Claimant and 3 or

 Period Claimant 1 Dependent 2 Dependents More Dependents

7/1/73-9/30/73 $169.80 $254.70 $297.10 $339.50

10/1/73-9/30/74 177.60 266.40 310.80 355.20

10/1/74-9/30/75 187.40 281.10 328.00 374.80

10/1/75-9/30/76 196.80 295.20 344.40 393.50

10/1/76-9/30/77 205.40 308.10 359.50 410.80

10/1/77-9/30/78 219.90 329.80 384.80 439.70

10/1/78-9/30/79 232.00 348.00 405.90 463.90

10/1/79-9/30/80 254.00 381.00 444.50 508.00

10/1/80-9/30/81 279.80 419.60 489.60 559.50

10/1/81-9/30/82 293.20 439.80 513.10 586.40

10/1/82-12/31/83 304.90 457.30 533.60 609.80

1/1/84-12/31/841 317.10 475.60 554.90 634.20

1/1/85-12/31/86 328.20 492.30 574.30 656.40

1/1/87-12/31/87 338.00 507.00 591.50 676.00

1/1/88-12/31/88 344.80 517.20 603.40 689.60

1/1/89-12/31/89 358.90 538.30 628.10 717.80

1/1/90-12/31/90 371.80 557.70 650.60 743.60

1/1/91-12/31/91 387.10 580.60 677.40 774.10

1/1/92-12/31/92 403.30 605.00 705.80 806.60

1/1/93-12/31/93 418.20 627.30 731.90 836.40

1/1/94-12/31/94 427.40 641.10 748.00 854.80

1/1/95-12/31/95 427.40 641.10 748.00 854.80

1/1/96-12/31/96 435.10 652.70 761.50 870.20

1/1/97-12/31/97 445.10 667.70 779.00 890.20

1/1/98-12/31/98 455.40 683.10 796.90 910.70

1/1/99-12/31/99 469.50 704.30 821.60 939.00

1/1/00-12/31/00 487.40 731.00 852.80 974.70

1/1/01-12/31/01 500.50 750.80 875.90 1,001.00

1/1/02-12/31/02 518.50 777.80 907.40 1,037.00

1/1/03-12/31/03 534.60 801.90 935.50 1,069.20

1/1/04-12/31/04 549.00 823.50 960.80 1,098.00

1/1/05-12/31/05 562.80 844.10 984.80 1,125.50

1/1/06-12/31/06 574.60 861.80 1,005.50 1,149.10

1/1/07-12/31/07 584.40 876.50 1,022.60 1,168.70

1/1/08-12/31/08 599.00 898.40 1,048.10 1,197.90

1 These benefit rates include the additional one-half percent increase that was 

granted retroactive to January 1, 1984. The rates in effect prior to the retroactive 

payments (1/1/84 through 6/30/84) were: $315.60 for a claimant only; $473.30 

for a claimant and 1 dependent; $552.20 for a claimant and 2 dependents; and, 

$631.10 for a claimant and 3 or more dependents.
65

Black Lung Tables B5 — B6

Table B-6

Funding and Disbursements 

of the Black Lung Disability Trust Fund

FY 2008

($ thousands)

Funding Disbursements

Coal Excise

Tax Treasury Income Medical Benefits Total Admin. Interest on

Month Revenue Advances Reimburse 1 Total Benefits 2 Diagnostic Treatment 3 Benefits Costs Advances Total

October 2007 $9,570 $0 $405 $9,975 $20,373 $397 $2,801 $23,570 $4,187 $0 $27,757

November 2007 60,099 0 332 60,431 20,073 406 $2,332 22,810 3,999 0 26,809

December 2007 53,749 0 334 54,083 19,934 389 $2,882 23,206 3,284 0 26,489

January 2008 49,480 0 314 49,794 19,721 306 $2,768 22,794 5,252 0 28,047

February 2008 77,682 0 580 78,262 19,903 392 $3,188 23,482 5,243 0 28,725

March 2008 58,003 0 220 58,223 19,668 367 $2,812 22,847 5,246 0 28,093

April 2008 60,482 0 465 60,947 19,855 400 $3,936 24,191 5,207 0 29,398

May 2008 44,828 0 391 45,219 19,418 312 $2,957 22,687 5,208 0 27,895

June 2008 54,224 0 300 54,524 19,311 289 $2,480 22,080 5,207 0 27,287

July 2008 53,198 0 523 53,721 19,271 328 $3,213 22,812 5,300 0 28,111

August 2008 52,013 0 563 52,576 18,962 244 $2,099 21,305 5,298 0 26,603

September 2008 79,853 426,000 586 506,439 18,860 228 $2,360 21,448 4,826 739,469 765,743

Totals $653,181 $426,000 $5,013 $1,084,194 $235,347 $4,057 $33,828 $273,232 $58,257 $739,469 $1,070,958

1 Reimbursements include collections from RMOs, and fines, penalties, and interest.

2 Includes monthly and retroactive benefit payments.

3 Treatment expenditures include reimbursements to the United Mine Workers’ 

Health and Retirement Funds.
66

Table C-1

Total Industry Compensation

and Benefit Payments Under LHWC

CY 1998 - CY 2007 2

($ thousands)

Calendar Year

Payments By: 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Self-Insured 

Employers $261,559 $283,991 $278,952 $307,708 $310,940 $309,843 $322,520 $325,694 $368,744 $325,544

Insurance Carriers 238,464 232,778 249,671 236,726 246,603 262,753 278,887 325,027 367,625 456,773

Total Payments $500,023 $516,769 $528,623 $544,434 $557,543 $572,596 $601,407 $650,721 $736,369 $782,317

1 Includes disability compensation and medical benefit payments under LHWCA, 

DCCA, and all other extensions to the Act.

2 Industry payments are reported to the Department of Labor on a calendar year basis.
67

LHWCA Tables C1 — C2

Table C-2

National Average Weekly Wage (NAWW) and Correspondi

Maximum and Minimum Compensation Rates and Annual Adjustmen

Pursuant to Sections 6(b), 9(e), and 10(f) of LHW

 Maximum Minimum Annual Adjustment

 Period NAWW Payable Payable (% Increase in NAWW)

11/26/72-9/30/73 $131.80 $167.00 $65.90 —

10/01/73-9/30/74 140.26 210.54 70.18 6.49

10/01/74-9/30/75 149.10 261.00 74.57 6.26

10/01/75-9/30/76 159.20 318.38 79.60 6.74

10/01/76-9/30/77 171.28 342.54 85.64 7.59

10/01/77-9/30/78 183.61 367.22 91.81 7.21

10/01/78-9/30/79 198.39 396.78 99.20 8.05

10/01/79-9/30/80 213.13 426.26 106.57 7.43

10/01/80-9/30/81 228.12 456.24 114.06 7.03

10/01/81-9/30/82 248.35 496.70 124.18 8.87

10/01/82-9/30/83 262.35 524.70 131.18 5.64

10/01/83-9/30/84 274.17 548.341 137.09 4.51

10/01/84-9/30/85 289.83 579.66 144.92 5.712

10/01/85-9/30/86 297.62 595.24 148.81 2.69

10/01/86-9/30/87 302.66 605.32 151.33 1.69

10/01/87-9/30/88 308.48 616.96 154.24 1.92

10/01/88-9/30/89 318.12 636.24 159.06 3.13

10/01/89-9/30/90 330.31 660.62 165.16 3.83

10/01/90-9/30/91 341.07 682.14 170.54 3.26

10/01/91-9/30/92 349.98 699.96 174.99 2.61

10/01/92-9/30/93 360.57 721.14 180.29 3.03

10/01/93-9/30/94 369.15 738.30 184.58 2.38

10/01/94-9/30/95 380.46 760.92 190.23 3.06

10/01/95-9/30/96 391.22 782.44 195.61 2.83

10/01/96-9/30/97 400.53 801.06 200.27 2.38

10/01/97-9/30/98 417.87 835.74 208.94 4.33

10/01/98-9/30/99 435.88 871.76 217.94 4.31

10/01/99-9/30/00 450.64 901.28 225.32 3.39

10/01/00-9/30/01 466.91 933.82 233.46 3.61

10/01/01-9/30/02 483.04 966.08 241.52 3.45

10/01/02-9/30/03 498.27 996.54 249.14 3.15

10/01/03-9/30/04 515.39 1,030.78 257.70 3.44

10/01/04-9/30/05 523.58 1,047.16 261.79 1.59

10/01/05-9/30/06 536.82 1,073.64 268.41 2.53

10/01/06-9/30/07 557.22 1,114.44 278.61 3.80

10/01/07-9/30/08 580.18 1,160.36 290.09 4.12

1 Maximum became applicable in death cases (for any death after September 28, 

1984) pursuant to LHWCA Amendments of 1984. Section 9(e)(1) provides that 

the total weekly death benefits shall not exceed the lesser of the average weekly 

wages of the deceased or the benefits that the deceased would have been eligible 

to receive under section 6(b)(1). Maximum in death cases not applicable to 

DCCA cases (Keener v. Washington Metropolitan Area Transit Authority, 800 

F.2d 1173 (D.C. Cir. (1986)).

2 Five percent statutory maximum increase applicable in FY 1985 under section 

10(f) of LHWCA, as amended. Maximum increase not applicable to DCCA 

cases (see note 1, above).
68

Table C-3

LHWCA and DCCA Special Funds’ Expendi

FY 1999 - FY 2008

($ thousands)

1 Special Fund expenditures shown in this table are reported on a cash basis, i.e., 

expenses are recognized when paid.

2 Section 8(f) payments to employees who sustain second injuries that, 

superimposed on a pre-existing injury, result in the employee’s permanent 

disability or death.

3 Section 10(h) of the Act requires that compensation payments to permanent 

total disability and death cases, when the injury or death is caused by an 

employment event that occurred prior to enactment of the 1972 amendments, 

be adjusted to conform with the weekly wage computation methods and 

compensation rates put into effect by the 1972 amendments. Fifty percent of any 

additional compensation or death benefit paid as a result of these adjustments are 

to be paid out of the Special Fund accounts.

4 In cases where vocational or medical rehabilitation services for permanently 

disabled employees are not available otherwise, and for maintenance allowances 

for employees undergoing vocational rehabilitation, sections 39(c) and 8(g) of 

the Act authorize the cost of these services to be paid by the Special Fund.

5 For cases where impartial medical exams or reviews are ordered by the 

Department of Labor (section 7(e) of Act) and where a compensation award 

cannot be paid due to employer default (section 18(b)), the expenses or 

payments resulting from these actions may be covered by the Special Fund. 

Also included as “Other” expenditures of the Funds are disbursements under 

section 44(d) to refund assessment overpayments in FY 1991 - FY 1993, and 

FY 1995 - FY 2006. Excluded are disbursements from proceeds of employer 

securities redeemed under section 32 of the Act. These monies are exclusively 

for payment of compensation and medical benefits to employees of companies 

in default.

Note: Special Fund expenditure totals for some years as shown above may differ from 

those reported to Congress in the Appendix to the President’s budget. The figures here are 

from year-end Status of Funds reports while the President’s budget reflects total outlays as 

reported to the Department of Treasury and may include technical adjustments made by 

Treasury or the Office of Management and Budget.

1999 $131,152 $117,574 $2,439 $4,888 $6,251 5,145 $11,879 $10,748 $747 $6 $377 617

2000 131,564 119,198 2,459 4,595 5,313 5,025 11,804 10,521 728 0 555 612

2001 133,374 119,952 2,295 5,121 6,006 4,953 11,341 10,368 708 0 265 601

2002 131,715 119,661 2,240 4,801 5,013 4,880 11,386 10,214 702 0 469 585

2003 131,589 119,965 2,153 4,628 4,844 4,778 11,184 9,997 664 0 523 572

2004 135,247 122,358 2,081 4,990 5,818 4,694 10,920 9,867 645 0 408 544

2005 134,549 122,418 1,973 5,002 5,156 4,588 10,604 9,767 597 0 240 527

2006 133,270 123,412 1,811 2,749 5,298 4,908 10,246 9,418 588 0 240 621

2007 131,920 117,524 1,796 6,715 5,885 4,728 10,087 9,260 613 0 214 603

2008 126,933 116,894 1,673 2,330 6,035 4,533 9,960 9,104 630 0 226 582

LHWCA

Expenditures ($)

DCCA

Expenditures ($)

Total Total

Second

Injury

Cases 2

Second

Injury

Cases 2

Pre

Amend.

Cases 3

Pre

Amend.

Cases 3 Rehab. 4 Rehab. Other 5 4 Other 5

Number 

of 

Second 

Injury 

Cases

Number 

of 

Second 

Injury 

FY Cases
69

LHWCA Tables C3 — C4

Table C-4

LHWCA and DCCA Special Funds’ Assess

CY 1999 - CY 2008

($ thousands)

1 Annual assessments of employers and insurance carriers are the largest single 

source of receipts to the Special Funds. Other receipts to the Funds include 

fines and penalties, payments for death cases where there is no person entitled 

under the Act to the benefit payments, interest earned on Fund investments, 

overpayment and third party recoveries, and monies received from redemption 

of securities under section 32 of the Act to pay compensation due employees 

of companies in default. These payments constitute a small portion of the total 

receipts of the Special Funds.

2 Assessments as shown here are not receipts to the Fund that were received 

during a given calendar year, but total assessments that are receivable from 

employers and insurance carriers based on the Special Fund assessment formula 

as prescribed under section 44(c) of the Act.

3 Annual industry assessments prior to CY 1985 were based on each employer’s 

or insurance carrier’s total disability compensation and medical benefit payments 

under the Act during the preceding calendar year. The LHWCA Amendments 

of 1984 revised the method for computuing assessments in two ways. Effective 

in CY 1985, assessments are based on disability compensation payments only, 

thereby excluding medical benefits from the computation. Also, a factor for 

section 8(f) payments attributable to each employer/carrier was added to the 

assessment base.

1999 130,000 343,146 CY 1998 11,300 6,232 CY 1998

2000 133,000 353,462 CY 1999 12,700 5,179 CY 1999

2001 133,000 361,549 CY 2000 12,000 5,103 CY 2000

2002 125,000 372,376 CY 2001 11,000 5,552 CY 2001

2003 125,000 364,194 CY 2002 10,800 4,746 CY 2002

2004 137,000 368,671 CY 2003 11,500 4,286 CY 2003

2005 135,000 388,258 CY 2004 11,500 5,402 CY 2004

2006 125,000 418,714 CY 2005 10,500 4,277 CY 2005

2007 125,000 471,133 CY 2006 10,000 4,185 CY 2006

2008 124,000 495,148 CY 2007 8,500 4,758 CY 2007

LHWCA DCCA

CY

Total Industry

Assessments 2

Total Industry

Assessments 2

Preceding Year Total

Industry Payments 3

Preceding Year Total

Industry Payments

Assessment

Base Yr.

Assessment

Base Yr.
70

LHWCA Table C5

Table C-5

Summary of Case Processing Activities Under LH

FY 1999 - FY 2008

Fiscal Year

Adjudication Level

and Case Status 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

District Offices

Pending Inventory of Cases 9,006 8,675 6,489 7,391 5,495 6,051 6,375 6,338 8,563 4 7,726

OALJ

Carryover from Previous FY 3,862 3,668 3,562 3,388 2,980 2,517 2,355 2,318 1,984 2,123 

New Cases 3,462 3,566 3,500 3,276 3,036 2,926 2,763 2,413 2,614 2,657 

Total Docket 7,324 7,234 7,062 6,664 6,016 5,443 5,118 4,731 4,598 4,780 

(Dispositions) 3,656 3,672 3,674 3,529 3,499 3,088 2,800 2,747 2,475 2,612 

Pending Inventory 3,668 3,562 3,388 2,980 3 2,517 2,355 2,318 1,984 2,123 2,168 

BRB

Carryover from Previous FY 318 326 295 248 208 267 222 211 182 152

New Cases 421 423 317 260 332 297 288 248 241 226

Total Docket 739 749 612 508 540 564 510 459 423 378 

(Dispositions) 438 467 384 319 282 355 304 288 282 260

Pending Inventory 326 2 295 2 248 2 208 2 267 2 222 2 211 2 182 2 152 2 134 2

1 Beginning in FY 1988, DCCA cases are excluded from DLHWC’s District 

Offices’ inventory as administration of these cases was delegated to the District 

of Columbia government effective July 18, 1988. Case processing and 

adjudication activities at the Office of Administrative Law Judges (OALJ) and 

Benefits Review Board (BRB) levels continue to include both LHWCA and 

DCCA cases.

2 Data adjusted by BRB to account for misfiled, duplicate, or reinstated appeals.

3 Includes dispositions of Boone 33(g) cases.

4 The increase in pending inventory compared to FY 2006 was due to the large 

number of new Defense Base Act cases created in the second quarter of FY 

2007. The total number of new cases increased by 42 percent during FY 2007.
71

EEOICPA Table D1 Part B

Table D-1 Part B

Status of All EEOICPA Applications at the End of F

Case Status/Claims Activity Case 2 Claim 3

Total Applications Received-Program Inception

Through 9/30/2008 63,603 93,336

Total Covered Applications Received-Program Inception

Through 9/30/2008 49,576 76,487

Final Decisions Completed by Final Adjudication Branch (FAB) 4 41,610 60,679

 Final Approved 23,493 35,031

 Final Denied 18,117 25,648

Recommended Decisions by District Offices 5 1,764 3,262

 Outstanding Recommended Decision to Approve 479 1,060

 Outstanding Recommended Decision to Deny 1,285 2,202

Completed Initial Processing -

Referred to NIOSH 3,783 7,806

Pending Initial Processing In District Office 6 2,419 4,740

Lump Sum Compensations 21,668 32,781

Total Payment Amounts $2,646,153,225 

1 Statistics show the status of all applications filed from program inception 

through September 30, 2008.

2 “Case” counts are numbers of employees (or survivors of employees) whose 

work and illness or death are the basis for a “claim.” (One case may have 

multiple survivor claims).

3 “Claim” counts are greater than case counts because they include numbers of 

employees and all survivors of employees who filed for benefits.

4 Each case or claim also received recommended decision by district office.

5 Each case or claim still pending final decision by FAB.

6 Includes remanded cases now in development and closed cases.
72

Table D-1 Part E

Status of All EEOICPA Applications at the End of F

Case Status/Claims Activity Case 2 Claim 3

Total Applications Received-Program Inception

Through 9/30/2008 54,023 75,483

Total Covered Applications Received-Program Inception

Through 9/30/2008 44,188 50,543

Final Decisions Completed by Final Adjudication Branch (FAB) 4 34,233 35,705

 Final Approved 18,015 18,847

 Final Denied 16,218 16,858

Recommended Decisions by District Offices 5 2,467 2,929

 Outstanding Recommended Decision to Approve 798 1,035

 Outstanding Recommended Decision to Deny 1,669 1,894

Completed Initial Processing - Referred to NIOSH 2,266 2,677

Pending Initial Processing In District Office 6 5,222 9,232

Compensation Payments (Unique Cases and Claims) 11,296 11,848

Total Compensation Payment Amts. $1,292,253,624

Lump Sum Allocations (Unique Cases and Claims) 7,394 7,907

Total Lump Sum Payment Amts. $911,545,547

Wage Loss Allocations (Unique Cases and Claims) 1,170 1,462

Total Wage Loss Payment Amts. $49,345,716

Impairment Allocations (Unique Cases and Claims) 3,901 3,901

Total Impairment Payment Amts. $331,362,361

1 Statistics show the status of all applications filed from program inception 

through September 30, 2008.

2 “Case” counts are numbers of employees (or survivors of employees) whose 

work and illness or death are the basis for a “claim.” (One case may have 

multiple survivor claims).

3 “Claim” counts are greater than case counts because they include numbers of 

employees and all survivors of employees who filed for benefits.

4 Each case or claim also received recommended decision by district office.

5 Each case or claim still pending final decision by FAB.

6 Includes remanded cases now in development and closed cases.
73

EEOICPA Tables D1 Part E — D2 Part B

Table D-2 Part B

Processing Activit

 During FY 2008 on All EEOICPA Cases/

Processing Activity Case 2 Claim 3

Total Cases/Claims Received-FY 2008 5,462 7,794

Total Cases/Claims (Covered Applications) Received-FY 2008 4,939 7,201

Final Decisions by FAB Offices in FY 2008 8,457 4 12,200

Final Approved 4,216 6,486

Final Denied 4,241 5,714

Modification Orders in FY 2008 230 241

Recommended Decisions by District Offices in FY 2008 9,012 12,928

Recommended Decision Only, to Approve 4,320 6,593

Recommended Decision Only, to Deny 4,692 6,335

Referrals to NIOSH in FY 2008 6,607 8,769

Lump Sum Compensation Payments in FY 2008 see claim statistics 5,992

Remands 379 594

1 Activity statistics capture actions made during FY 2008 only, therefore the 

number of activities reported do not add up to the total number of cases/claims 

received during FY 2008. (Many activities recorded occurred on cases/claims 

received prior to FY 2008).

2 “Case” counts are numbers of employees (or survivors of employees) whose 

work and illness or death are the basis for a “claim.” (One case may have 

multiple survivor claims).

3 “Claim” counts are greater than case counts because they include numbers of 

employees and all survivors of employees who filed for benefits.

4 Total includes cases with recommended decisions in FY 2008.
74

1 Activity statistics capture actions made during FY 2008 only, therefore the 

number of activities reported do not add up to the total number of cases/claims 

received during FY 2008. (Many activities recorded occurred on cases/claims 

received prior to FY 2008).

2 “Case” counts are numbers of employees (or survivors of employees) whose 

work and illness or death are the basis for a “claim.” (One case may have 

multiple survivor claims).

3 “Claim” counts are greater than case counts because they include numbers of 

employees and all survivors of employees who filed for benefits.

4 Total includes cases with recommended decisions in FY 2008.

Table D-2 Part E

Processing Activity

During FY 2008 on All EEOICPA Cases/

Processing Activity Case 2 Claim 3

Total Cases/Claims Received-FY 2008 6,313 8,373

Total Cases/Claims (Covered Applications) Received-FY 2008 5,507 6,508

Final Decisions by FAB Offices in FY 2008 13,002 4 13,440

Final Approved 7,315 7,541

Final Denied 5,687 5,899

Modification Orders in FY 2008 252 257

Recommended Decisions by District Offices in FY 2008 13,538 14,066

Recommended Decision Only, to Approve 7,721 7,965

Recommended Decision Only, to Deny 5,817 6,101

Referrals to NIOSH in FY 2008 4,134 4,351

Compensation Payments in FY 2008 (Unique Cases and Claims) 4,538 4,730

Total Compensation Payment Amts. $456,734,026

Lump Sum Allocations (Unique Cases and Claims) 1,938 2,122

Total Compensation Payment Amts. $233,708,492

Wage Loss Allocations (Unique Cases and Claims) 445 555

Total Wage Loss Payment Amts. $21,433,444

Impairment Allocations (Unique Cases and Claims) 2,509 2,509

Total Impairment Payment Amts. $201,592,090

Remands 697 790 
75

EEOICPA Tables D2 Part E — D3 Part B

Table D-3 Part B

EEOICPA Cases With Approved Decisions and Pay

by Catergory, Program Inception Through September 30, 200

Total

Number of Percentage of Total Number of Compensation Paid 2 Percentage of Total

Category Approved Cases 1 Final Approvals Paid Claimants 1 ($ thousands) Compensaton Paid

Radiation Exposure Comp. Act (RECA) 3 5,970 25.5% 9,201 $296,123 11.2%

Special Exposure Cohort Cancer (CN) 8,105 34.6% 12,415 1,175,226 44.5%

Dose Reconstructed Cancer (CN) 5,877 25.1% 8,312 869,262 32.9%

Beryllium Disease (CBD) 4 1,785 7.6% 2,360 263,090 10.0%

Beryllium Sensitivity-Only (BS) 1,456 6.2% N/A N/A N/A

Silicosis (CS) 74 0.3% 88 10,800 0.4%

Multiple Conditions 5 190 0.8% 212 27,450 1.0%

TOTAL 23,457 100.0% 32,588 $2,641,952 6 100.0%

1 There is not a direct correlation between number of approved cases and number 

of paid claimants for two reasons: (1) more than one claimant can receive 

payment on a single approved case, and (2) some cases were approved prior to 

9/30/2008, but payments were not issued.

2 Represents total lump sum compensation payments from EEOIC program 

inception through September 30, 2008.

3 RECA cases are not counted in any other category of this table.

4 Cases approved for both CBD and BS are counted in the CBD category, only.

5 Cases counted in the Multiple Conditions category were approved for CN and 

CBD, or CN and CS, or CBD and CS, or CN and BS, or CS and BS.

6 Total does not include 44 cases that have data anomalies, primarily due to cases 

that could not be attributed to the designated categories.
76

Table D-4 Part B

EEOICPA Cases With Final Decision to 

Program Inception Through September 30, 2008

Reason for Denial Number of Cases 1

Employee Did Not Work at a Covered DOE Facility, Atomic Weapons Employer, or Beryllium

Vendor During a Covered Time Period 4,073

Alleged Survivor Not an Eligible Beneficiary 540

Claimed Condition Not Covered Under Part B of EEOICPA 9,627

Dose Reconstruction Reveals the Probability That the Cancer is Related to Employment

is Less Than 50 Percent 12,502

Medical Evidence is Insufficient to Establish Entitlement 5,075

Total 31,817

1 A case may have more than one final decision. (For example, a request for 

modification may result in a second final decision on a case). Therefore, the total 

number shown does not represent the number of cases with final decisions to deny.
77

EEOICPA Tables D4 Part B — D4 Part E

Table D-4 Part E

EEOICPA Cases With Final Decision to 

Program Inception Through September 30, 2008

Reason for Denial Number of Cases 1

Employee Did Not Work at a Covered DOE Facility, Atomic Weapons Employer, or Beryllium

Vendor During a Covered Time Period 2,762

Alleged Survivor Not an Eligible Beneficiary 6,641

Claimed Condition Not Covered Under Part E of EEOICPA 161

Dose Reconstruction Reveals the Probability That the Cancer is Related to Employment

is Less Than 50 Percent 4,222

Medical Evidence is Insufficient to Establish Entitlement 11,835

Total 25,621

1 A case may have more than one final decision. (For example, a request for 

modification may result in a second final decision on a case). Therefore, the total 

number shown does not represent the number of cases with final decisions to deny.
78

1 Based on cases that were denied because claimed condition was not covered 

under Part B of EEOICPA. These figures exclude cases that have a “covered” 

condition, whereas Table D-4 Part B includes these cases.

Note: The sum of individual items may not equal 100 percent due to rounding.

Table D-5 Part B

Most Prevalent Non-Covered Medical Condition

EEOIC Program Inception Through September 30, 2

Percentage of All Denials

Non-Covered Medical Condition For This Condition 1

Other Lung Conditions 22 %

Heart Condition/Failure/Attack/Hypertension 11

Chronic Obstructive Pulmonary Disease & Emphysema 8

Asbestosis 6

Renal Condition or Disorder (Kidney Failure, Kidney Stones) 5

Hearing Loss 4

Benign Tumors, Polyps, Skin Spots 3

Diabetes 3

Neurological Disorder 2

Thyroid Conditions (e.g., Hypothyroidism) 2

Anemia 1

Back or Neck Problems 1

Parkinson’s Disease 1

Psychological Conditions 1

All Other Non-Covered Conditions (Each Less Than 1%) or Other (Not Listed) 22

No Condition Reported on Claim Form or Blank Condition Type 8

EEOICPA Table D5 Part B

80

U.S. Department of Labor

Office of Workers’ Compensation Program

200 Constitution Avenue, NW.

Washington, DC 20210

202-693-0031

www.dol.gov/owcp

Director, Office of Workers’

Compensation Programs

Shelby Hallmark

Deputy Director, Office of Workers’ 

Compensation Programs

Nancy M. Flynn

Director, Division of Planning,

Policy and Standards

Cecily Rayburn

Division of Federal Employees’ Compensation (www.dol.gov/owcp/dfec)

Douglas C. Fitzgerald, Director

Division of Coal Mine Workers’ Compensation (www.dol.gov/owcp/dcmwc)

Steven D. Breeskin, Acting Director

Steven D. Breeskin, Deputy Director

Division of Longshore and Harbor Workers’

Compensation (www.dol.gov/owcp/dlhwc)

Michael Niss, Director

Division of Energy Employees Occupational

Illness Compensation (www.dol.gov/owcp/energy)

Rachel P. Leiton, Director

Christy A. Long, Deputy Director

LuAnn Kressley, Chief, Final Adjudication Branch

Office 

Directory
81

Region I/II — Northeast

(Connecticut, Maine, Massachusetts, New Hampshire, 

New Jersey, New York, Puerto Rico, Rhode Island, 

Vermont, Virgin Islands)

Regional Office (New York)

Robert Sullivan, Regional Director

U.S. Department of Labor, OWCP

201 Varick Street, Room 740

New York, NY 10014

646-264-3100

New York FECA District Office

Zev Sapir, District Director

U.S. Department of Labor

OWCP/DFEC

201 Varick Street, Room 740

New York, NY 10014-0566

646-264-3000

New York Longshore District Office

Richard V. Robilotti, District Director

U.S. Department of Labor

OWCP/DLHWC

201 Varick Street, Room 740

Post Office Box 249

New York, NY 10014-0249

646-264-3010

Boston FECA District Office

Susan Morales, District Director

U.S. Department of Labor

OWCP/DFEC

JFK Federal Building, Room E-260

Boston, MA 02203

617-624-6600

Boston Longshore District Office

David Groeneveld, District Director

U.S. Department of Labor

OWCP/DLHWC

JFK Federal Building, Room E-260

Boston, MA 02203

617-624-6750

EEOICPA Resource Center Contract Facility:

(New York Site)

David San Lorenzo, Office Manager

6000 North Bailey Avenue, Suite 2A, Box #2

Amherst, NY 14226

716-832-6200 (Toll-Free 1-800-941-3943)

newyork.center@rrohio.com

Region III — Philadelphia

(Delaware, District of Columbia, Maryland, 

Pennsylvania, Virginia, West Virginia)

Regional Office

R. David Lotz, Regional Director

U.S. Department of Labor, OWCP

Curtis Center, Suite 780 West

170 S. Independence Mall West

Philadelphia, PA 19106-3313

215-861-5400

Philadelphia FECA District Office

John McKenna, District Director

U.S. Department of Labor

OWCP/DFEC

Curtis Center, Suite 715 East

170 S. Independence Mall West

Philadelphia, PA 19106-3308

215-861-5481

Baltimore Longshore District Office

Theresa Magyar, District Director

U.S. Department of Labor

OWCP/DLHWC

The Federal Building, Room 410-B

31 Hopkins Place

Baltimore, MD 21201

410-962-3677
82

Norfolk Longshore District Office

Theresa Magyar, District Director

U.S. Department of Labor

OWCP/DLHWC

Federal Building, Room 212

200 Granby Mall

Norfolk, VA 23510

757-441-3071

Johnstown Black Lung District Office

Stuart Glassman, District Director

U.S. Department of Labor

OWCP/DCMWC

Greater Johnstown Tech Park

1 Tech Park Drive, Suite 250

Johnstown, PA 15901-1267

814-619-7777 (Toll-Free 1-800-347-3754)

Wilkes-Barre Black Lung District Office

Maribeth Girton, District Director

U.S. Department of Labor

OWCP/DCMWC

100 N. Wilkes-Barre Blvd., Room 300A

Wilkes-Barre, PA 18702-5245

570-826-6457 (Toll-Free 1-800-347-3755)

Charleston Black Lung District Office

Richard Hanna, District Director

U.S. Department of Labor

OWCP/DCMWC

Charleston Federal Center, Suite 110

500 Quarrier Street

Charleston, WV 25301-2130

304-347-7100 (Toll-Free 1-800-347-3749)

Greensburg Black Lung District Office

Colleen Smalley, District Director

U.S. Department of Labor

OWCP/DCMWC

1225 South Main Street, Suite 405

Greensburg, PA 15601-5370

724-836-7230 (Toll-Free 1-800-347-3753)

Parkersburg Black Lung Sub-District Office

Vicki Frye, Supervisory Claims Examiner

U.S. Department of Labor

OWCP/DCMWC

425 Juliana Street, Suite 3116

Parkersburg, WV 26101-5352

304-420-6385 (Toll-Free 1-800-347-3751)

DCMWC Field Stations:

U.S. Department of Labor

OWCP/DCMWC

Mine Safety & Health Academy, Rm. G-100

139 Airport Road

Beckley, WV 25802

304-252-9514

U.S. Department of Labor

OWCP/DCMWC

Mine Safety and Health Administration

110 Gott Road

Princeton, WV 24740

304-425-8161
83

Office Directory

U.S. Department of Labor

OWCP/DCMWC

Elkins Social Security Office

Jennings-Randolph Federal Building

300 3rd Street, Suite 325

Elkins, WV 26241

304-636-4747

U.S. Department of Labor

OWCP/DCMWC

523 Dingess Street

Logan, WV 25601

304-752-9514

U.S. Department of Labor

OWCP/DCMWC

Post Office Box 790

Uneeda, WV 25205

304-369-6050

U.S. Department of Labor

OWCP/DCMWC

604 Cheat Road

Morgantown, WV 26505

304-291-4277

U.S. Department of Labor

OWCP/DCMWC

Wise County Plaza, 2nd Floor

Route 23

Wise, VA 24293

276-679-4590

Region IV — Southeast

(Alabama, Florida, Georgia, Kentucky, Mississippi, 

North Carolina, South Carolina, Tennessee)

Regional Office

Richard A. Brettell, Regional Director

U.S. Department of Labor, OWCP

400 West Bay Street, Room 943

Jacksonville, FL 32202

904-357-4776

Jacksonville FECA District Office

Magdalena Fernandez, District Director

U.S. Department of Labor

OWCP/DFEC

400 West Bay Street, Room 826

Jacksonville, FL 32202

904-357-4777

Jacksonville Longshore District Office

Charles Lee, District Director

U.S. Department of Labor

OWCP/DLHWC

Charles E. Bennett Federal Bldg.

400 West Bay Street, Room 63A, Box 28

Jacksonville, FL 32202

904-357-4788

Jacksonville Energy District Office

James Bibeault, District Director

U.S. Department of Labor

OWCP/DEEOIC

400 West Bay Street, Room 722

Jacksonville, FL 32202

904-357-4705 (Toll-Free 1-877-336-4272)
84

Pikeville Black Lung District Office

Roger Belcher, District Director

U.S. Department of Labor

OWCP/DCMWC

164 Main Street, Suite 508

Pikeville, KY 41501-1182

606-218-9300 (Toll-Free 1-800-366-4599)

Mt. Sterling Black Lung Sub-District Office

Brenda K. Jamison, Assistant District Director

U.S. Department of Labor

OWCP/DCMWC

402 Campbell Way

Mt. Sterling, KY 40353

859-498-9700 (Toll-Free 1-800-366-4628)

EEOICPA Resource Center Contract Facilities:

(Paducah Site)

Katherine Fuller, Office Manager

Barkley Center, Unit 125

125 Memorial Drive

Paducah, KY 42001

270-534-0599 (Toll-Free 1-866-534-0599)

paducah.center@rrohio.com

(Savannah River Site)

Karen Hillman, Office Manager

1708 Bunting Drive

North Augusta, SC 29841

803-279-2728 (Toll-Free 1-866-666-4606)

srs.center@rrohio.com

(Oak Ridge Site)

Shirley White, Office Manager

Jackson Plaza Office Complex

800 Oak Ridge Turnpike – Suite C-103

Oak Ridge, TN 37830

865-481-0411 (Toll-Free 1-866-481-0411)

or.center@rrohio.gov

Region V/VII — Midwest

(Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, 

Missouri, Nebraska, Ohio, Wisconsin, overseas cases)

Regional Office (Chicago)

Nancy Jenson, Regional Director

U.S. Department of Labor, OWCP

230 South Dearborn Street, 8th Floor

Chicago, IL 60604

312-596-7131

Chicago FECA District Office

Joan Rosel, District Director

U.S. Department of Labor

OWCP/DFEC

230 South Dearborn Street, 8th Floor

Chicago, IL 60604

312-596-7157

Cleveland FECA District Office

Karen Spence, District Director

U.S. Department of Labor

OWCP/DFEC

1240 East Ninth Street, Room 851

Cleveland, OH 44199

216-357-5100

Cleveland Energy District Office

Annette Prindle, District Director

U.S. Department of Labor

OWCP/DEEOIC

1001 Lakeside Avenue, Suite 350

Cleveland, OH 44114

216-802-1300 (Toll-Free 1-888-859-7211)

Columbus Black Lung District Office

Lorraine Rardain, District Director

U.S. Department of Labor

OWCP/DCMWC

1160 Dublin Road, Suite 300

Columbus, OH 43215-1052

614-469-5227 (Toll-Free 1-800-347-3771)
85

Office Directory

Kansas City FECA District Office

Lois Maxwell, District Director

U.S. Department of Labor

OWCP/DFEC

Two Pershing Square Building

2300 Main Street, Suite 1090

Kansas City, MO 64108-2416

816-502-0301

EEOICPA Resource Center Contract Facility:

(Portsmouth Site)

Jackie Sensue, Office Manager

1200 Gay Street

Portsmouth, OH 45662

740-353-6993 (Toll-Free 1-866-363-6993)

portsmouth.center@rrohio.com

Region VI/VIII -- Southwest

(Arkansas, Colorado, Louisiana, Montana, New 

Mexico, North Dakota, Oklahoma, South Dakota, 

Texas, Utah, Wyoming)

Regional Office (Dallas)

E. Martin Walker, Regional Director

U.S. Department of Labor, OWCP

525 South Griffin Street, Room 407

Dallas, TX 75202

972-850-2409

Dallas FECA District Office

Christina Stark, District Director

U.S. Department of Labor

OWCP/DFEC

525 South Griffin Street, Room 100

Dallas, TX 75202

972-850-2300

Houston Longshore District Office

Brad Soshea, District Director

U.S. Department of Labor

OWCP/DLHWC

Mickey Leland Federal Building

1919 Smith Street, Suite 870

Houston, TX 77002

713-209-3235

New Orleans Longshore District Office

David Duhon, District Director

U.S. Department of Labor

OWCP/DLHWC

600 S. Maestri Place, Suite 617

New Orleans, LA 70130

504-589-2671

Denver FECA District Office

Shirley Bridge, District Director

U.S. Department of Labor

OWCP/DFEC

1999 Broadway, Suite 600

Denver, CO 80202

720-264-3000

Denver Black Lung District Office

Valerie Jackson, District Director

U.S. Department of Labor

OWCP/DCMWC

1999 Broadway, Suite 690

Denver, CO 80202

720-264-3100 (Toll-Free 1-800-366-4612)

Denver Energy District Office

Janet Kapsin, District Director

U.S. Department of Labor

OWCP/DEEOIC

1999 Broadway, Suite 1120

Denver, CO 80202-5711

720-264-3060 (Toll-Free 1-888-805-3389)
86

EEOICPA Resource Center Contract Facilities:

(Rocky Flats Site)

Janele Horner-Zarate, Office Manager

8758 Wolff Court, Suite 101

Westminster, CO 80031

720-540-4977 (Toll-Free 1-866-540-4977)

denver.center@rrohio.com

(Espanola Site)

Karen Martinez, Office Manager

412 Paseo De Onate, Suite D

Espanola, NM 87532

505-747-6766 (Toll-Free 1-866-272-3622)

espanola.center@rrohio.com

Region IX/X — Pacific

(Alaska, Arizona, California, Guam, Hawaii, Idaho,

Nevada, Oregon, Washington)

Regional Office (San Francisco)

Sharon Tyler, Regional Director

U.S. Department of Labor, OWCP

90 Seventh Street, Suite 15-100

San Francisco, CA 94103-6716

415-625-7575

San Francisco FECA District Office

Andy Tharp, District Director

U.S. Department of Labor

OWCP/DFEC

90 Seventh Street, Suite 15-300

San Francisco, CA 94103-6716

415-625-7500

San Francisco Longshore District Office

R. Todd Bruininks, District Director

U.S. Department of Labor

OWCP/DLHWC

90 Seventh Street, Suite 15-100

San Francisco, CA 94103-6716

415-625-7669

Long Beach Longshore District Office

Eric Richardson, District Director

U.S. Department of Labor

OWCP/DLHWC

401 East Ocean Blvd., Suite 720

Long Beach, CA 90802

562-980-3577

Honolulu Longshore Sub-District Office

R. Todd Bruininks, District Director

U.S. Department of Labor

OWCP/DLHWC

300 Ala Moana Blvd., Room 5-135

Post Office Box 50209

Honolulu, HI 96850

808-541-1983

Seattle FECA District Office

Marcus Tapia, District Director

U.S. Department of Labor

OWCP/DFEC

1111 Third Avenue, Suite 650

Seattle, WA 98101-3212

206-398-8100

Seattle Longshore District Office

Karen Staats, District Director

U.S. Department of Labor

OWCP/DLHWC

1111 Third Avenue, Suite 620

Seattle, WA 98101-3212

206-398-8255

Seattle Energy District Office

Joyce Vail, District Director

U.S. Department of Labor

OWCP/DEEOIC

719 2nd Avenue, Suite 601

Seattle, WA 98104

206-373-6750 (Toll-Free 1-888-805-3401)
87

Office Directory

EEOICPA Resource Center Contract Facilities:

(Idaho Falls Site) 

Steve Beehler, Office Manager

Exchange Plaza

1820 East 17th Street, Suite 375

Idaho Falls, ID 83404

208-523-0158 (Toll-Free 1-800-861-8608)

idaho.center@rrohio.com

(Las Vegas Site)

Joe Krachenfels, Office Manager

Flamingo Executive Park

1050 East Flamingo Road, Suite W-156

Las Vegas, NV 89119

702-697-0841 (Toll-Free 1-866-697-0841)

vegas.center@rrohio.com

(Hanford Site)

Steve Beehler, Office Manager

303 Bradley Blvd., Ste. 104

Richland, WA 99352

509-946-3333 (Toll-Free 1-888-654-0014)

hanford.center@rrohio.com

(California Site)

Joe Krachenfels, Office Manager

2600 Kitty Hawk Road, Suite 101

Livermore, CA 94551

925-606-6302 (Toll-Free 1-866-606-6302)

california.center@rrohio.com

National Operations Office

(District of Columbia, Maryland, Virginia)

Barbara Williames, District Director

U.S. Department of Labor

OWCP/DFEC

National Operations Office

800 N. Capitol St., NW., Room 800

Washington, DC 20211

202-513-6800

Material contained in this publication is in 

the public domain and may be reproduced, 

fully or partially, without permission of 

the Federal Government. Source credit is 

requested but is not required. Permission is 

required only to reproduce any copyrighted 

material contained herein.

This material will be made available to 

individuals upon request.

(202)693-0031

Internet address: 

www.dol.gov/owcp