Black Lung Benefits Program: Administrative and Structural Changes Could Improve Miners' Ability to Pursue Claims
Released: 2009-10-30T00:00:00

Letter

Background

According to NIOSH, coal workers’ pneumoconiosis (CWP), also known as black lung disease, has been a contributor or underlying cause of death for more than 73,800 United States workers since 1968 (see fig.1). Following the passage of the Federal Coal Mine Health and Safety Act of 1969, which established the first comprehensive respirable dust standards for coal mines, the prevalence of black lung disease among mine workers decreased about 90 percent from 1969 to 1995. However, after 1995, the prevalence of black lung disease rose. The increase was more marked in specific parts of the country, such as the Appalachian region. By 2006 the prevalence of black lung disease had more than doubled among underground coal miners who had worked 25 to 29 years—increasing from 3.4 percent in 1995 to 7.9 percent. The rate of black lung disease among underground coal miners with 20 to 24 years of experience increased from 2.5 percent in 1995 to 6 percent in 2006. According to NIOSH officials, black lung disease may be occurring for a number of reasons, including weaknesses in the current coal mine dust regulations, noncompliance with those regulations, new risk factors associated with changing mining conditions, longer work hours, and missed opportunities to prevent severe disease through periodic medical screening.

According to NIOSH, significant progress has been made toward improving the health conditions in our nation’s coal mines; however, with coal currently mined in 27 states and coal mines employing an average of 117,082 workers, coal miners continue to be at risk of developing occupational lung disease. While miners across the country remain at risk for lung disease, incidence of black lung-related deaths are more concentrated in the Appalachian region (see fig. 1), where the coal mined has high carbon content. To address these issues, the DOL’s Mine Safety and Health Administration intends to publish a proposed rule to lower the coal mine dust permissible exposure limit in April 2011.

The Black Lung Benefits Program provides medical and income assistance to coal mine workers who suffer disability or death due to black lung disease. To be eligible for black lung benefits, a coal miner must prove total disability due to pneumoconiosis (a chronic disease of the lung) arising from coal mine employment. Specifically, the miner must establish each of the following elements: (1) the miner has pneumoconiosis; (2) the lung disease arose from coal mine employment; (3) the miner suffers from a totally disabling respiratory or lung impairment (a miner is considered totally disabled if black lung prevents him from engaging in his usual coal mine work); and (4) the miner’s pneumoconiosis is a substantially contributing cause of his disability.

If a claimant is awarded benefits, the mine company that is determined to be the responsible employer of the miner generally must provide for the payment of benefits, either directly or through insurance. The Black Lung Disability Trust Fund pays the cost of black lung claims when no coal mine operator can be held liable for payments. The Black Lung Disability Trust Fund is financed by coal mine companies through an excise tax. Under the Black Lung Benefits Revenue Act of 1977, each coal mine operator is required to pay an excise tax to support payment of benefits to claimants and to cover the cost of administering the program.

The Black Lung Benefits Program is administered by the Division of Coal Mine Workers’ Compensation in OWCP. OWCP, OALJ, and BRB are three independent bodies within DOL that process claims, adjudicate cases, and issue decisions (see fig. 2). Once OWCP issues a decision, either the claimant, responsible mine operator (RO), or Black Lung Disability Trust Fund officials can request a hearing by OALJ. The administrative law judge provides a fresh review of the evidence and issues a decision. Any findings or conclusions by OWCP are not relevant or binding on the administrative law judge. Parties can appeal OALJ decisions to BRB, BRB decisions can be appealed to the appropriate United States Circuit Court of Appeals, and finally, Circuit Court of Appeals decisions may be appealed to the Supreme Court of the United States. Both OALJ and BRB can remand—send claims back—to lower adjudicative bodies for additional review. Cases may be remanded for procedural errors or for further development of evidence.

To ensure that claimants can properly develop evidence for their claim, DOL is required by law to give miners the opportunity to receive a complete pulmonary evaluation, which is paid for by the program. DOL provides the miner with a list of doctors and medical facilities that DOL has authorized to perform complete pulmonary evaluations that are located in the state of the miner’s residence and bordering states. If a miner fails to undergo a required medical examination without good cause, the claim may be denied. In addition, a miner may submit a medical report (obtained at the miner’s expense) from a personal doctor or a physician.

In addition, mine workers afflicted with black lung disease may have access to some resources that help monitor their health and provide access to black lung benefits. For example, the Black Lung Clinics program, a federal program administered by HRSA, provides grants to 15 public and private nonprofit organizations, known as “Black Lung Clinics,” which provide specialized diagnosis and treatment services, outreach, and educational programs to help patients and their families deal with the disease. Black Lung Clinic benefit counselors also help provide clients with information about additional sources of social, medical, and legal assistance, specifically on where to obtain legal representation to establish a federal black lung benefits claim. In addition, some nonprofit organizations provide resources and support for coal miners and their survivors. For example, UMWA advocates for improving coal mine health and safety laws and regulations, and the Washington and Lee University Black Lung Legal Clinic provides legal assistance to coal miners and their survivors in pursuing federal black lung benefits.

DOL Issued Claims Decisions at Each Stage of the Process, on Average, in 1 Year or Less, but High Rates of Appeal and Remand, Among Other Factors, Delay Resolution of Many Claims

DOL Issued Claims Decisions at Each Stage of the Claims Process, on Average, in 1 Year or Less

According to department data for fiscal year 2008, DOL decided claims at each stage of the claims process, on average, in 1 year or less, meeting its respective performance goals (see table 1). At the initial stage of claim processing, it took an average of 205 days for OWCP to issue a decision from the date the claim was received. OWCP receives the largest number of claims for miners or their dependents annually. At the first and second stages of appeal, OALJ averaged within 365 days to issue a decision on a claim from the date a transcript of the hearing was prepared, while BRB averaged 341 days to make a decision from the date the claim was received.

DOL Does Not Track How Long Claims Remain in the Process, but Some Claims Spent 3 Years or More in the Process

DOL does not track how long all claims remain in the claims and appeals process, but we calculated that about 28 percent of the claims of miners awarded benefits from mine companies spent 3 years or more in the process. DOL officials gave the following reasons for not tracking how long claims may remain in the claims and appeals process: The adjudicating bodies at each stage of the Black Lung Benefits Program’s claims and appeals process maintain independence and do not share similar administrative processes or computer systems.

OWCP’s claimant tracking system was designed, in part, to ensure that eligible claimants are ultimately paid, not to determine how long claims remain in the process.

Determining how long claims persist in the claims and appeals process can be challenging because it is difficult to determine what constitutes a claim’s resolution. For example, claims can be appealed up to 30 or 60 days after a decision, and a modification of a claim may also be requested up to one year after a decision denying benefits or by any party up to one year after the last payment of benefits.

Given this, we chose to measure how long cases persisted in the claims and appeals process by using OWCP’s data and looking only at when an identified RO agreed to pay benefits to a miner, which we believe was the best available indicator of cases that had been resolved. Yet, this approach has some limitations as noted above.

For the claims we examined, which were filed between 2001 and 2008, mine companies agreed to pay benefits for the majority of claims within 3 years from the date of the initial claim, while a minority of claims remained in the process for as many as 8 years before an RO agreed to pay (see fig. 3). We only focused on those claims where a miner was ultimately awarded benefits by an RO because, according to DOL officials, these claims are likely to be the most litigated. We also focused on claims made between 2001 and 2008 because DOL officials said that several changes in the regulatory and statutory structure of the program before then negatively impacted the rate at which claims moved through the process and that major regulatory revisions implemented in 2001 heavily affected the current program’s procedures. For about 73 percent of the 763 examined claims filed between 2001 and 2008, ROs agreed to pay in less than 3 years. For roughly 24 percent of the 763 claims, ROs agreed to pay within 3 to 6 years from the time the claim was filed. For the few remaining claims, about 4 percent, ROs agreed to pay within 6 to 8 years from the time a claim was filed. However, the results of our analysis may represent a best-case scenario because some claims filed between 2001 and 2008 are still in the claims and appeals process and the length of time necessary for a RO to agree on payment could not be measured. In addition, these findings cannot be generalized to miners who were denied benefits or other types of claimants.

According to DOL officials, far fewer claims end up in the appeals process now than was the case historically due to a decline in the number of claims and the fact that presently, for the majority of claims, there is no request for further action beyond OWCP’s decision. According to DOL officials, on average, about 80 percent of all claims decided by OWCP annually have no requests for further action. For example, in fiscal year 2006, OWCP decided about 81 percent of all claims with no requests for further action pending after one year. In addition, DOL officials said that for a number of reasons—including a decline in the number of miners in the United States—they receive far fewer claims annually than in prior years. For example, according to data provided by DOL, in fiscal year 1985, 12,250 new claims were filed at OWCP, while there were only 4,269 new claims filed in fiscal year 2008.

A Significant Number of Claims Are Appealed and Many Claims Are Remanded

Although a majority of claims are resolved with OWCP, we found that a significant number of claims—approximately 20 percent—request further action, many of which are appeals to OALJ. Both miners and mine operators frequently seek appeals, and a significant number of claims are appealed after a decision is issued by OWCP either awarding or denying benefits. For example, in fiscal year 2008, for claims where an RO was identified and OWCP awarded benefits to a claimant, mine operators appealed OWCP’s decision approximately 80 percent of the time. In the same fiscal year, approximately 15 percent of all miners’ claims denied at OWCP were appealed by miners. In addition, according to BRB officials, between fiscal years 2004 and 2008, approximately 43 percent of all claims decided by OALJ were appealed to BRB, and about 10 percent of all BRB decisions were appealed to federal appellate courts.

In addition to the significant number of claims that are appealed, many are remanded back to the prior review stage by DOL adjudicators, according to DOL officials. Officials said remands can extend appeals for less than 1 month to up to 1 year, depending on why a claim is remanded and other factors. In fiscal year 2008, BRB remanded one-third of all claims referred to it back to one of the two lower bodies, while OALJ remanded 13 percent of claims it considered back to OWCP. Claims are remanded for several reasons. At the first stage of appeal (OALJ), remands are made when evidence needs to be developed further or when the appeal is withdrawn by the litigant or dismissed by the judge. At the second stage of appeal (BRB), remands are made to either OWCP for the resolution of issues, such as the proper development of evidence, or to the OALJ for reconsideration.

Officials at DOL offered divergent opinions on why cases were remanded. Some administrative law judges said claims are sometimes remanded to OWCP because medical evidence submitted by DOL’s approved doctors was incomplete and required clarification or further development. BRB judges said claims are commonly remanded to OALJ for reconsideration because of certain legal deficiencies, such as errors in weighing evidence. However, several administrative law judges said that they believed that BRB sometimes remands claims for further review by the administrative law judge to avoid the potential review of a BRB decision by a United States Circuit Court of Appeals, and others said that in their view, certain remands are the result of BRB reweighing evidence, which is beyond the narrow scope of BRB review. In 2007, an independent program reviewer examined the number of OALJ remands to OWCP and concluded that further study of the causes of remands could help DOL identify policies and procedures that reduce this source of delays. No study has been conducted to determine the causes of remands by any of DOL’s adjudicators back to the prior review stage, whether from adjudicatory bodies back to OWCP or from BRB to OALJ, according to DOL officials.

Stakeholders Say There Are Financial Incentives to Extend Appeals and Prolong the Adjudication of Claims

The structure of the Black Lung Benefits Program creates financial incentives for claimants to appeal denials of claims. According to DOL officials, some miners extend appeals in an attempt to have interim benefits reinstated or to maintain their payment of interim benefits. Specifically, for miners whose claims are initially awarded but then appealed, the program provides interim benefit payments that cover medical expenses and a roughly $600 to $1,200 monthly stipend. Consequently, if an award is overturned by OALJ or BRB, the claimant has a major incentive to appeal again in an attempt to reinstate these benefits. Moreover, according to DOL officials, some sick miners never expect to win their claim by filing appeals; rather, the approach is to keep their black lung claim alive—for example, by requesting numerous continuances—until their death, with the expectation that DOL will not seek to recoup interim benefit payments from their surviving spouse or dependents.

DOL officials also said that mine companies have financial incentives to prolong the adjudication of claims. First, according to DOL officials, mine companies often skip the initial stage of the claims process altogether and do not begin to develop a defense until the hearing before OALJ, which may delay a definitive decision. Under the program, mine companies are not required to submit evidence during initial claims processing at OWCP, and as discussed earlier, any findings or conclusions by OWCP are not relevant or binding on the administrative law judge. DOL officials said that because some claims lack merit and many claims are abandoned or withdrawn, mine companies see no need to develop a defense and submit evidence for these cases. Second, according to some administrative law judges, when mine companies do submit evidence during appeals, it is sometimes submitted after the claimant has first submitted his own evidence and just prior to a hearing. Doing so may afford the mine companies the opportunity to evaluate and most effectively counter claimants’ evidence, according to some administrative law judges and claimant attorneys. Some administrative law judges said that this tactic may delay the issuance of a decision because judges may allow claimants the opportunity to develop the record after the hearing if they did not have sufficient time prior to the hearing to address the newly submitted evidence.

OWCP officials said that a provision in a 1997 proposed rule would have addressed such delays and other concerns, by requiring parties to submit all evidence at the initial claim stage. According to these officials, this proposed provision would have allowed OWCP to make more informed decisions up front and avoid some of the protracted and expensive appeals. The proposal received much criticism during the public comment period and was not adopted in the final rule. According to DOL officials, one concept from this proposal has been implemented through an administrative procedure: prior to issuing a decision on a claim, OWCP now issues a preliminary assessment concerning the claimant’s eligibility for benefits based on the information gathered to that point. DOL officials said that this has helped to address mine operator concerns about the costs of developing a defense for every claim because many claimants withdraw when OWCP’s preliminary assessment does not favor eligibility.

Some Hearings Are Delayed by the Need for Judges to Travel to Remote Locations and to Grant Claimants Additional Time to Seek Representation

Some hearings are delayed because claimants reside in rural and remote locations. According to administrative law judges, when claimants live in remote locations, hearings are delayed until several cases can be scheduled at the same time in one region, which limits lengthy travel required of judges. According to one Black Lung Clinic official, in some cases, scheduling hearings for miners who live in remote locations can take more than 2 years. On the other hand, when asked whether video technology—such as that employed by the Social Security Administration’s Disability Determination Services—might reduce hearing delays by eliminating the need to travel, some of DOL’s administrative law judges said it might accelerate hearings for miners or their dependents in rural and remote settings.

Hearings can also be delayed because claimants lack legal representation. Administrative law judges said that in some cases, the first appearance by miners or their dependents at the OALJ hearing is without legal counsel. In such cases, administrative law judges said that it is standard practice for the judge to ask if the claimant has legal representation or if the claimant has sought representation. If a claimant needs more time to obtain legal counsel, the judge typically grants a hearing continuance. According to OALJ, continuances may delay claims adjudication between 5 and 6 months. Administrative law judges said that it is not uncommon to grant one or two continuances to unrepresented claimants seeking counsel.

Most Claims Are Initially Denied, Most Often because Claimants Cannot Meet All Evidentiary Requirements

DOL Denies a Majority of Initial Claims and about Half of All Subsequent Appeals

Since 2001, most claims have been initially denied; and for 2008, we calculated that about half of all appeals resulted in the denial of claimant benefits. The OWCP overall denial rate for black lung claims has remained constant at around 85 percent or higher in the 8 years since the fiscal year 2001 changes to the Black Lung Benefits Program regulations. At the initial claims level, OWCP denied 87 percent of the 4,416 claims decided in fiscal year 2008 (see table 2). There was virtually no difference between the denial rates for claims filed against the DOL-managed Black Lung Disability Trust Fund (84 percent) and claims filed against mine companies (88 percent). At the first level of appeals, OALJ issued decisions that resulted in the denial of claimant benefits in more than half, or 53 percent, of the 1,367 decisions issued in fiscal year 2008. At the second level of appeals, BRB decisions resulted in the denial of claimant benefits in about half, or 47 percent, of the 737 appeals issued in fiscal year 2008. Because neither OALJ nor BRB systematically track whether their decisions result in the award or denial of claimant benefits, we were only able to determine their denial rates for 1 year and were not able to determine how they have changed over time.

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

Few claimants are able to meet all of the program’s evidentiary requirements, which are set by law. In order to be eligible for black lung benefits, claimants generally must prove they have pneumoconiosis—coal- induced lung disease—that they are totally disabled as a result of it, and that the disease is caused by their mine employment. Based on DOL data, we calculated that over 60 percent of the claims adjudicated and denied by OWCP in fiscal year 2008 and estimated that over half of the claims adjudicated and denied by OALJ and BRB were denied because claimants could not prove that they had pneumoconiosis or, if they could, that pneumoconiosis had caused disability or death. Some claimants have difficulty proving that their lung disease is pneumoconiosis. Although a lung X-ray can detect scarring, agency officials report that claimant doctors and company physicians may each read the X-ray differently. In addition, according to NIOSH scientists, some miners develop a form of lung disease associated with long-term exposure to coal mine dust that impairs lung function but frequently cannot be detected by X-ray. Agency officials and claimant doctors we interviewed said a significant portion of black lung claimants who have this form of pneumoconiosis also have a history of smoking, which presents another evidentiary problem: while the Black Lung Benefits Program regulations require that miners prove coal dust is a significant contributing cause of their disability, NIOSH officials reported that there is no scientific way to assign the proportion of cause to either inhalation of coal dust or tobacco smoke. Depending on the intensity and duration of exposures to coal dust and tobacco smoke, both can play a role in the impairment and disability of a miner. In such cases, judges told us that they rely heavily on nonclinical evidence to determine whether claimants are eligible for benefits. According to some administrative law judges, mining company doctors are usually better credentialed and produce lengthier, more sophisticated, and comprehensive medical reports and evaluations than claimants’ doctors. For example, some claimants’ doctors may only produce DOL’s 4-page medical evaluation, while RO doctors will provide medical reports in excess of 20 pages supported by various citations from medical journals.

Claimants who can prove they have pneumoconiosis may nevertheless be unable to establish that it is a significantly contributing cause for the condition of their lungs, if other medical conditions are present that may contribute as well. Agency officials, claimants’ attorneys, and physicians with whom we spoke said claimants may also suffer from ailments such as heart disease, tuberculosis, or sarcoidosis—impairments which, like pneumoconiosis, can diminish a claimant’s lung function. In cases where it is difficult to determine the cause of a claimant’s disability, administrative law judges must decide whether the claimant’s doctor or the mine operator’s doctor has offered the most well-reasoned medical opinion. As in the case of smokers with pneumoconiosis, judges told us they rely heavily on nonclinical evidence, namely physician credentials and the length and comprehensiveness of the evidence presented by the parties.

In contrast to Simple Coal Workers’ Pneumoconiosis (CWP), Advanced CWP, as seen in the first image, is generally characterized by massive lung scarring and lesions, resulting in severely impaired lung function. The second image depicts Coal Mine-Induced Emphysema, which is characterized by destruction of respiratory tissues, resulting in impaired airflow through the lungs and into the bloodstream. Emphysema is one type of Chronic Obstructive Pulmonary Disease (COPD) associated with long-term coal mine dust exposure, which includes Chronic Bronchitis, among others.

Although it can be difficult for some claimants to meet all of the Black Lung Benefit Program’s evidentiary standards, there is no settlement option, such as an agreement for payment of partial benefits for partial disability. Though settlement is prohibited under the current statute, some stakeholders told us that a settlement option would increase the number of miners who would receive awards and reduce the amount of time it takes to resolve black lung claims. Still, others have said that such settlements would be incongruent with the fact that the disease is progressive. Some DOL officials told us that settlement would cause miners to settle for award amounts that would be less than what they would be eligible for once the disease progressed. Others noted that if the program permitted claimants to be paid through a lump sum settlement, instead of the current practice of receiving monthly benefit payments, miners might spend their award before they would most need it.

Other state and federal workers’ compensation programs, including the Longshore and Harbor Workers’ Compensation Act, do allow claimants to settle their claims or to be compensated for partial disability. The West Virginia state workers’ compensation program, among others, also provides the option for claimants to settle their black lung claim for partial disability. One claimant with whom we spoke who has been unable to resolve his federal black lung claim for 8 years was able to receive compensation for partial disability under the West Virginia workers’ compensation program while still employed as a coal miner. Although this settlement option has been used in other workers’ compensation programs, DOL officials—citing the prohibition in the statute—said to date, there has been no research done to evaluate the costs and benefits of offering settlement for partial disability to black lung claimants.

Coal Miners Face a Number of Challenges in Pursuing Federal Black Lung Benefits, Including Finding Legal Representation and Developing Sound Medical Evidence

Although the Program and DOL Recognize the Importance of Legal Representation for Miners, DOL Does Not Track, Evaluate, and Report on Claimants’ Access to Legal Representation

The importance of legal representation for black lung claimants is well established. The Black Lung Benefits Act recognizes the importance of claimant representation by providing reasonable fees for claimant attorneys in the successful prosecution of a claim under the statute. DOL has recognized that the early involvement of legal representatives in claimants’ cases improves the quality of evidence submitted and the decision making in all claims for benefits. Therefore, DOL issued regulations in 2001 that provide for compensation of claimant attorneys for all reasonable time, from the outset of a case, if it ends in an award. In a variety of ways, DOL has also encouraged black lung claimants to seek representation for the claims they initially file, as well as the claims they appeal. For example, DOL’s Web site includes a claimant resource page that provides representation guidelines for administrative appeals and identifies a number of lawyer referral services, including services with the American Bar Association and legal aid clinics associated with law schools and other nonprofit organizations. On this Web page, OALJ advises claimants that DOL adjudications “vary widely in complexity and in many instances it may be wise to obtain legal counsel.” Administrative law judges also use various means to encourage claimants to seek representation. For example, some judges provide information about the advantages of representation in the Notice of Hearing, talk directly to unrepresented claimants about such advantages at the hearing, or issue a special letter to unrepresented claimants indicating that black lung cases often involve complicated legal issues and encouraging them to find representation. Finally, judges are permitted to grant claimants additional time in order for them to secure representation before a hearing.

While DOL collects some information about claimant representation, it does not track, evaluate, or report on claimants’ access to legal representation throughout the claims and appeals process. At our request, OWCP, OALJ, and BRB provided us with the number of claimants with legal representation at each stage of the process based on data captured by their systems. However, due to limitations in data collection, these numbers were not sufficiently reliable for use in our report. For example, at the OWCP level, officials told us that some claimant representation information is captured by an automated correspondence system, separate from the main data management system, but that the correspondence system was not designed to track claimant representation and cannot identify types of representatives and at what point in the claims process a claimant acquired representation. The data management systems used by OALJ and BRB capture claimant representation data, but these data are limited by similar factors. For example, OALJ’s system cannot identify whether a representative is an attorney or lay representative and at what point in the appeals process a claimant acquired representation. In addition, BRB officials told us that their data do not include the number of all appeals filed without counsel because they do not track legal representation for appeals filed by nonprofit agencies on the behalf of black lung claimants. Further, OWCP, OALJ, and BRB officials told us that they do not report any of the representation information they collect or use it to measure performance. However, a number of DOL officials told us that finding representation is a significant challenge for many claimants. For example, program officials cited claimants’ lack of representation, particularly in the early stages of a claim, as a significant barrier to successful claims. OALJ officials told us that few attorneys will represent black lung claimants and that lack of legal representation limits OALJ’s ability to process cases quickly.

Disincentives for Lawyers to Take Claimants’ Cases and Scarce Nonprofit Resources Impede Claimants’ Ability to Secure Legal Representation

There are few financial incentives for lawyers to take black lung claimants’ cases, and claimants generally do not have the financial resources to cover the costs associated with developing the evidence needed to support and defend their claims. According to DOL officials, attorneys are not inclined to take claimants’ cases due to a low probability of success. As noted previously, only 13 percent of all claims were initially approved by OWCP in fiscal year 2008. Moreover, while DOL has no official data on the final approval rate after all appeals are exhausted, black lung experts suggested that the final award rate is about half of the initial award rate. Other disincentives DOL officials and claimant attorneys cited are that the process can be lengthy and costly. For example, one attorney told us that it has taken as long as 15 years from the start of a black lung case to receive compensation for working on it. Among the significant legal costs that claimant attorneys said they incur with black lung cases is the time spent preparing legal briefs and expenses associated with evidence development, such as preparing medical experts’ reports. Because claimants lack financial resources for evidence development and DOL’s payment of claimant attorneys’ fees is contingent on the success of cases, claimant attorneys bear much of the legal costs during the litigation of claimants’ cases. In Black Lung Benefits Act cases, a claimant may not be charged a fee by an attorney unless black lung benefits are awarded. While no precise estimates of legal costs for claimant cases were available, based on GAO’s analysis of one law firm’s estimated total legal costs for black lung cases, cases that took roughly between 2 to 4 years to resolve averaged about $18,000 in total legal costs. This firm also indicated that it has five unresolved black lung cases that have been active 7 years or more, with an average cost of at least $70,000 in total accrued legal costs. In contrast to reports of limited representation available to claimants, DOL officials and representatives from claimant groups and mine companies said that mine operators tend to have greater resources to develop black lung evidence.

Various nonprofit organizations offer assistance to claimants, but their capacity to meet the legal needs of black lung claimants is limited. A prominent nonprofit legal resource for claimants is a black lung legal clinic operated by the law school at Washington and Lee University in Virginia. Currently, the clinic has 42 active black lung cases, and its operation relies largely on the voluntary efforts of law professors and their students. Officials told us that the clinic does not have the resources to provide legal assistance to a larger number of black lung claimants. Another source of nonprofit legal assistance for claimants is the federally supported Black Lung Clinics program, which primarily provides medical services. Serving 14 states, these clinics are supported by HRSA grants; they provide miners with a number of services related to the diagnosis and treatment of black lung disease. Some clinics are authorized by DOL to conduct diagnostic testing for the Black Lung Benefits Program, and clinics are encouraged by the Black Lung Clinics program to assist miners with their claims through benefit counseling and legal referral. According to program officials, four clinics receiving HRSA grants also provide claimants with free lay representation. DOL administrative law judges told us that some lay representatives have provided miners with effective support and guidance by helping them understand the claims process and properly complete the required documentation on time. However, they noted that lay representatives are better suited to helping claimants with initial claims than with appeals, which they said generally requires formal legal training. At one time, the UMWA offered legal representation for black lung claimants, but UMWA representatives said currently that they can only refer claimants to outside legal representatives.

Evidentiary Documents Submitted by DOL- Approved Doctors Do Not Always Provide Sound or Thorough Support for Miner Claims

DOL administrative law judges and claimant advocates reported that doctors who have been approved by DOL to conduct diagnostic tests and provide pulmonary evaluations do not always submit complete medical documentation. DOL judges told us that doctors’ medical opinions are a key element of evidence in claims adjudication and indicated that most of the opinions submitted by DOL’s approved doctors did not provide claimants with sound evidentiary support for their cases. In particular, DOL judges told us that doctors’ written opinions frequently lack clarity and specificity on the causal factors of disease and do not adequately explain their reasons for their conclusions, if at all.

While DOL has made efforts through its national and district offices to educate its approved diagnostic providers about documenting medical evidence for black lung claimants, some claimant doctors and representatives told us that the program does not consistently provide doctors with clear guidance for effectively and completely documenting their medical opinions, particularly with respect to describing the causes of disease and explaining the basis of their medical conclusions. In particular, one doctor with experience as a DOL-approved provider told us that doctors new to DOL’s approved list are often unclear about how to properly document their medical opinions on DOL’s medical evaluation form.

While DOL provides supplemental guidelines for doing this, he suggested that many DOL- approved physicians are not accustomed to the comprehensive, narrative format required by DOL. Program officials told us that the comprehensive narrative format is necessary and preferable over forms that solicit discrete responses because of the complexity of black lung disease and the importance of good reasoning in developing sound medical evidence. However, according to one doctor, the narrative portion of the pulmonary evaluation form is often left incomplete or poorly developed because of its open-ended structure. In an attempt to improve the clarity and completeness of medical evaluations, as well as reduce the need for doctor follow-up, one DOL district office developed a supplemental questionnaire for soliciting explicit information from doctors and attached it to DOL’s official medical form. According to officials at this district office, the supplemental form effectively supported their efforts in improving the quality of medical evidence documented by approved doctors. However, DOL’s national office required the district office to discontinue using this supplement as a routine form because it had not been authorized through the Office of Management and Budget.

The extent to which DOL’s district offices hold approved doctors accountable for the quality of submitted medical evidence is unclear because DOL does not track whether and how often district offices need to follow-up with doctors or withhold payment for inadequate medical documentation. DOL can also remove a doctor from the approved list for poor performance, including poor quality of documentation and delays in submitting reports. Since the creation of DOL’s approved provider list in 2001, OWCP has removed four doctors and reinstated one. However, DOL officials told us they are reluctant to remove doctors because of challenges in maintaining an adequate number who are qualified to conduct diagnostic testing for the program. For example, in identifying recruiting challenges, DOL officials said that some doctors do not want to expose themselves to cross-examination by attorneys for the mine employers or their insurers. They also noted that certain geographic areas present difficulties for finding enough qualified doctors suitable for the approved list. Consequently, OWCP may use more liberal standards for evaluating the qualifications of doctors in these areas to ensure that claimants have access to and, where possible, a choice between approved doctors. Because of recruiting challenges, DOL officials said that they prefer to work with approved doctors to improve the quality of their documentation, rather than remove them from the approved list.

Blood Gas Testing Practices May Contribute to Inaccurate Disability Readings for Claimants

Medical experts with whom we spoke told us that some practices of conducting blood gas tests, which provide evidence for claimant and RO parties, may contribute to inaccurate disability readings for claimants. Blood gas tests are required by regulation and conducted with the miner at rest and, if medically indicated, during exercise. According to one medical expert, inaccurate readings can result from insufficient intensity or duration of exercise, poorly executed manual blood draw, prolonged delay between blood draw and sample analysis, and improperly calibrated diagnostic equipment, among others things. DOL officials acknowledged that differences in how doctors conduct blood gas tests may influence test results. In particular, they stated that using a catheter is more reliable and, therefore, preferable to a single stick or to manually drawing blood with a syringe. However, they explained that diagnostic testing facilities in some areas may not have the capacity to carry out blood draws using indwelling catheters. They also said that, generally, they are not able to monitor or control how doctors conduct blood gas tests. DOL validates the results of all blood gas tests conducted by its approved doctors. In contrast, officials said they do not have the authority to validate or require validation of results of tests conducted by mine operator doctors.

Claimant advocates and representatives from black lung clinics we interviewed alleged that some doctors working for mine companies or their insurers conduct blood gas tests in ways that boost claimants’ blood oxygen levels, thereby lowering their disability readings. Examples they provided include failing to record the pulse rate during the blood draw, not icing blood samples, shaking blood samples to aerate them prior to analysis, and allowing significant delays between drawing and analyzing blood. Program officials acknowledged that they are aware of such allegations but said they have no way to test the veracity of these claims or determine the incidence of such practices. Currently, DOL has no system for logging and tracking complaints it receives from parties to black lung cases concerning testing practices of either DOL-approved or RO-hired doctors. Mine industry representatives with whom we spoke said they are not aware of complaints or any cases of manipulation.

Conclusions

The Black Lung Benefits Program remains a significant source of black lung compensation for the nation’s coal miners, but there are a number of administrative and structural problems that could impede the ability of eligible miners to pursue claims. First, the high rate of appeals by both claimants and mine operators and the high number of remands by OALJ and BRB all prolong the resolution of claims. Although the cause for these rates is not entirely clear, it is evident that the program’s structure can create financial incentives for both miners and mine operators to continue to file or extend appeals. Without ways to streamline or speed the appeals process, expedite hearings for remote areas, and avoid remands, many claims will likely continue to go unresolved for years. Yet, because DOL does not track all claims from initial application through appeals, the agency cannot begin to accurately assess the scope of this problem or develop strategies to improve it.

In recent years, few claimants have been able to meet all of the program’s evidentiary requirements, and the current state of black lung science makes it difficult for claimants to meet certain requirements. Without a thorough examination of the ability of claimants to meet evidentiary standards or exploring alternatives to resolving claims, such as settlement, claimants with meritorious claims may not receive benefits.

Moreover, many claimants are not equipped with the medical and legal resources they need to develop evidence that will meet the program’s requirements. While miners must be able to develop sound evidentiary support for their black lung cases, the medical evidence prepared by DOL- approved doctors does not consistently provide this support, and blood gas testing practices may contribute to inaccurate disability test readings. In the absence of complete and reliable medical evidence for miners, there is a greater chance that the judges who review the cases will be presented with medical evidence that is insufficient. Similarly, without better options for legal representation, significant numbers of claimants proceed with their claims through a complex and potentially long administrative process without the resources DOL officials and black lung experts note are important to developing evidence and supporting their claims. Yet, DOL does not collect data that would offer a complete assessment of the scope of this problem. Absent efforts to re-examine these structural issues and remedy administrative problems, claimants with meritorious claims will go without benefits, and delays in the resolution of claims will continue.

Recommendations for Executive Action

To improve the effectiveness of the Black Lung Benefits Program, we recommend that the Secretary of Labor undertake the following seven actions: 1. Take steps to reduce the number of black lung cases remanded from BRB to OALJ by convening a group to determine the causes of these remands and develop solutions for reducing their incidence. 2. Obtain summary information on how long it takes to resolve claims using its current automated system to routinely track cases through the entire adjudication process and develop associated performance measures. 3. Consider shortening the time required to schedule hearings for black lung cases by examining the feasibility of using video teleconferencing technology to streamline the scheduling of hearings in remote areas. 4. Based on feedback from relevant black lung medical stakeholders, including approved diagnostic providers and Black Lung Clinics, develop options for improving how doctors’ opinions are documented on DOL’s medical evaluation form. 5. Evaluate and report on claimant access to legal and lay representation by implementing changes to the data management systems of OWCP, OALJ, and BRB that will permit accurate data about claimant representation throughout the claims and appeals process. 6. Evaluate and address blood gas testing practices that may contribute to inaccurate disability test readings by implementing a feedback mechanism to record and track complaints from federal black lung claims stakeholders about testing practices. 7. Examine the following issues and evaluate the potential for proposing structural changes to the program to Congress: options for enhancing incentives for attorneys and lay representatives to take claimants’ cases; areas that could be explored include alternate pay structures for attorneys and an examination of federal support for lay representation; the costs and benefits of allowing compensation for partial disability and settlement of claims; the clinical limitations in documenting evidence to prove pneumoconiosis and total disability; and new and previous proposals to reduce the amount of time it takes to resolve claims and appeals, including requiring complete evidentiary development at the primary claims processing phase and limiting the need for appeals.

Agency Comments and Our Evaluation

We provided a draft of this report to DOL for review and comment. The department provided written comments with OWCP, OALJ, and BRB responding to our report in three separate letters. These letters are reproduced in appendix II. In its comments, DOL generally agreed with six of our recommendations, and disagreed with one recommendation. DOL agreed to take steps to reduce the number of black lung cases remanded from BRB to OALJ by convening a group to determine the causes of these remands and develop solutions for reducing their incidence, though BRB expressed concern that the creation of an “independent panel” would be inappropriate. In order to respond to BRB’s concern, we modified the language from “independent panel” to “group.” We recognize BRB’s judicial independence and authority and the need for the department to determine the reasons for remands in order to develop solutions to reduce them. The intent of our recommendation was not to assess or evaluate BRB’s performance.

The department generally disagreed with our recommendation to obtain information on how long it takes to resolve claims by developing a mechanism to track cases through the entire adjudication process and develop associated performance measures. OALJ and OWCP indicated in their individual responses that the current system does track the status of each claim and that the system is currently capable of tracking black lung claims throughout the appeals process. However, DOL does not currently track how long a claim remains in the adjudications process as one indicator of performance. We believe that DOL should leverage the capability of its current automated systems for routinely tracking such information and develop associated performance measures. Accordingly, we modified the wording of our recommendation to clarify this point.

In its response, OWCP provided its own analysis of the time it takes to resolve black lung claims. However, we were unable to verify the accuracy of OWCP’s analysis because DOL did not provide us with the data or the calculations used to derive this figure. Moreover, when we carried out our analysis of time to resolve claims, OWCP stressed the difficulty of conducting such an analysis and provided us with data, some of which we found unreliable. It was because of this difficulty and the lack of reliable data that we focused our analysis on the only subset of data for which we could reliably determine claim resolution times—those cases that were ultimately awarded benefits. It also made sense to examine these cases because: (1) they were the most likely to be litigated, (2) were, in our opinion, the best available proxy for how long a litigated claim could remain in the system and (3) because other types of claims, such as Trust Fund claims, are unlikely to be appealed. OWCP said it provided its analysis because ours used data that represented approximately 2 percent of black lung claims that were filed between 2001 and 2008, according to its data. OWCP did not provide us with information about how it derived the 2 percent figure, so we could not verify its accuracy. However, given that few miners who bring a claim prevail, and we examined those where a miner was awarded benefits, we recognize that the cases we examined represent a small part of all claims. In the report, we made clear that these cases were only a small subset of all cases and that processing times for these cases could not be generalized. Moreover, even though the claims we examined represent a minority of claims filed, they are part of the constituency that the Act sought to ensure would have recourse through the system. OWCP officials told us that they did not believe that a global measure of timeliness would improve its ability to measure performance or provide any other benefit. We disagree and believe that such a measure would add transparency that might ultimately improve DOL’s processes.

The department concurred with our recommendation to consider shortening the time required to schedule OALJ hearings. The OALJ supported the idea that video teleconferencing hearing technology could assist in expediting hearings in remote locations and used their comments to begin considering issues related to acquiring such technology.

DOL also agreed with our recommendation to develop options for improving how doctors’ opinions are documented. Though OWCP agreed with our recommendation, in their comments agency officials emphasized that any revisions to the form should include a “well-reasoned narrative” and allow less room for legal challenge from parties, not more. However, we believe that it is essential for DOL to collect and consider feedback from stakeholders in their revisions to the form.

In response to our recommendation to collect more specific data for evaluating claimant access to legal and lay representation, DOL agreed to enhance their existing systems to begin to track when in the process a claimant is represented and whether the claimant is represented by an attorney or lay representative. OALJ, in its individual comments, disagreed with us on the extent to which claimant representation data is currently being captured by OALJ. However, we still maintain that the data provided by OALJ was not sufficiently reliable and that system enhancements— including the type of representation a claimant secured and at what point a claimant received that representation (e.g., 1 month, 4 months, or 1 year after an appeal)—are required for DOL to develop a more accurate assessment of the level of claimant access to representation.

DOL also stated that it would expand its existing medical provider database to include records of complaints in response to our recommendation to implement a feedback mechanism to record and track complaints from black lung program stakeholders about testing practices. Though they generally agreed with our recommendation, OWCP expressed concern that an increase in complaints could discourage even good doctors from remaining on DOL’s list of approved medical providers. However, the purpose of our recommendation is not to penalize good doctors, but for DOL to begin to track complaints so that the agency can begin to understand the extent to which disability testing errors occur with DOL-approved doctors as well as mine company-hired doctors.

DOL also agreed with our recommendation to evaluate the potential for proposing structural changes to the program to Congress. In response to our recommendation, both OWCP and OALJ used their comments to begin an examination of potential options for consideration for legislative changes. DOL also submitted technical changes to a draft of the report, which we incorporated into the report as appropriate.

We are sending copies of this report to the Secretary of Labor, relevant congressional committees, and other interested parties. In addition, the report will be available at no charge on GAO’s Web site at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-7215 or sherrilla@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on last page of this report. GAO staff who made key contributions to this report are listed in appendix III.

Appendix I: Objectives, Scope, and Methodology

To gain insight in to the administration of the Black Lung Benefits Program, we examined (1) how long it takes to process and resolve black lung benefits claims; (2) at what rate and for what reasons black lung claims and appeals are denied by the Department of Labor (DOL); and (3) what barriers, if any, confront miners or their survivors in pursuing their claims.

To determine how long it takes to process black lung benefits claims, we collected data from the Office of Workers’ Compensation Programs (OWCP) Automated Support Package claims tracking system, Office of Administrative Law Judges (OALJ) Case Tracking System, and the Benefits Review Board (BRB) Prime Appeals Tracking System. We assessed the reliability of OWCP, OALJ, and BRB data by (1) performing electronic testing of required data elements, (2) reviewing existing information about the data and the system that produced them, and (3) interviewing agency officials knowledgeable about the data. We also obtained processing data from performance reports from each of the three agencies. We determined that the data were sufficiently reliable for the purposes of this report. To establish criteria, the team compared current black lung claims and appeals processing times to the program’s past performance and to agency and Office of Management and Budget performance goals. In addition to conducting data analysis, the team conducted interviews with officials from OWCP, OALJ, and BRB.

To determine how long claims remain in the claims and appeals process, we collected data from the OWCP Automated Support Package claims tracking system. However, DOL does not track how long all claims remain in the claims and appeals process. DOL officials cited three primary reasons for not doing so: each body of the program maintains independence and does not share similar administrative processes or computer systems; OWCP’s claimant tracking system was designed, in part, to ensure that claimants are paid, not to determine how long claims remain in the process; and determining how long claims remain in the claims and appeals process can be challenging because it is difficult to determine what constitutes a claims resolution. For these reasons, we were only able to determine how long claims persisted in the claims and appeals process for one subset of claimants: miners for whom a responsible mine operator (RO) ultimately paid benefits. Although DOL provided data on other claimants, such as miners’ widows who were awarded benefits, the data were not sufficiently reliable to determine the time to resolve these claims. We attempted to determine if newer claims were resolved at different rates than older claims and how two major regulatory changes to the program instituted in 1981 and 2001 affected claim resolution times. However, our report focused on claims filed between January 19, 2001, and December 31, 2008, because DOL officials said that these claims more accurately reflected how long claims persist in the current claims and appeals process. We determined the time that claims persisted in the process by measuring the date of the initial claim application to the date when a RO agreed to pay benefits. Our examination assessed two cohorts: 3,073 claims filed between January 2, 1982, and January 19, 2001, and 763 claims filed between January 20, 2001, and December 31, 2008. However, many claims filed between 2001 and 2008 are still in the claims and appeals process and hence could not be measured. Therefore, the time calculated to resolve these newer claims may not be fully representative of the time necessary to resolve the claims and appeals process.

To determine the rates at which black lung claims and appeals are denied by DOL, we collected case tracking data from OWCP, OALJ, and BRB. OWCP was able to provide us with data tracking the number of denials, and we used these data to determine the OWCP denial rate. OALJ and BRB do not keep such data. To determine the OALJ and BRB denial rates, we reviewed all fiscal year 2008 OALJ and BRB case documents from a list generated from the agencies’ respective case tracking systems. We calculated the number of denials and the total number of cases and then computed a denial rate. To determine the reasons that black lung claims were denied, we collected data from OWCP’s case tracking system that captures the reasons for denials. Neither OALJ nor BRB track the reasons why appeals are denied; therefore, to establish the reasons why black lung appeals were denied, we selected random probability samples of all black lung OALJ and BRB appeals cases decided and denied in fiscal year 2008, recorded the results of this analysis into a data collection instrument, and projected the results onto the population. We sampled 85 cases for OALJ and 76 cases for BRB. All percentage estimates in this report from these samples have a margin of error of plus or minus 10 percentage points or less at the 95 percent confidence level, unless otherwise noted. In addition to our data analysis, the team also conducted interviews with officials from OWCP, OALJ, BRB, and the National Institute for Occupational Safety and Health (NIOSH).

To understand the barriers that claimants face in pursuing federal black lung benefits, we conducted interviews with key officials and experts at DOL and other relevant federal agencies, representatives with national, regional, and local organizations that focus on issues or provide support services related to black lung disease and associated disability, as well as local stakeholders who are involved in federal black lung claims on behalf of miner-claimants. At DOL, we interviewed officials with OWCP, OALJ, and BRB and officials and experts with NIOSH, the Centers for Disease Control and Prevention, and the Health Resources and Services Administration. We interviewed representatives from national organizations, including the National Mining Association, the United Mine Workers of America, and the National Coalition of Black Lung and Respiratory Disease Clinics. At the regional and local levels, we interviewed representatives of federal grant-supported Black Lung Clinics, Washington and Lee University’s black lung legal clinic, as well as miner- claimants and a range of local black lung stakeholders, including doctors, outreach workers, lawyers, and lay representatives.

In our interviews, we collected information about factors that facilitate and hinder miners’ pursuit of federal black lung benefits, including the availability and adequacy of relevant medical and legal services to miners. Our interviews with DOL officials specifically focused on the department’s policies, procedures, and guidance for providing or assisting claimants with identifying such services, as well as their views on the effectiveness of such services in assisting claimants to develop sound evidence for their cases. Our interviews with miner-claimants and local black lung stakeholders, including Black Lung Clinic personnel, were organized as site visits to southern West Virginia and eastern Kentucky. These states and regions were selected because they have (1) high levels of miner death related to black lung disease, (2) a large volume of federal black lung claims, and (3) estimates of black lung-related resources and services. The site visits provided valuable information about the challenges miners face in pursuing federal black lung benefits from the perspective of claimants, as well as local black lung stakeholders who have worked closely with claimants. In addition, we reviewed relevant federal statutes, regulations, administrative cases, and court cases.

We conducted this performance audit from October 2008 to October 2009 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient and appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comments from the Department of Labor

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Acknowledgments

Patrick Dibattista (Assistant Director) and Michelle Bracy (analyst-in- charge) managed all aspects of the assignment. Edward Bodine, Christopher Lyons, and Brenda Muñoz made significant contributions to this report, in all aspects of the work. In addition, James Ashley, Cynthia Grant, and Jean McSween provided technical support in design and methodology and statistical analysis; Doreen Feldman and Roger Thomas provided legal support; James Bennett and Susan Bernstein assisted in the message and report development; and Jeff Miller assisted with quality assurance.