Today the Department of Labor made three policy changes that help miners win and defend their federal black lung benefits. The changes are marginal steps in the right direction and will likely make a difference in cases in which the miner cannot pay a physician to respond to additional evidence submitted by the coal company challenging the miner’s claim.
The Three Changes
The first two changes affect miners who have 15 years of coal mine employment and who should receive benefits based on the Department of Labor’s medical evaluation. These two new changes are:
(1) in claims before the District Directors (the first step in the process) in which the coal company opposing black lung benefits submits additional medical evidence, the Department of Labor will request—and pay for—the physician who provided the original medical evaluation to respond to the additional evidence (see here for BLBA Bulletin No. 14-05 explaining this change); and
(2) if the miner does not have an attorney and the coal company appeals the miner’s award of benefits for a hearing before an Administrative Law Judge (ALJ), the Department of Labor will assign an attorney from its Solicitor’s Office to determine whether the liable coal company has submitted additional medical evidence which warrants asking the physician who provided the Department of Labor’s medical evaluation to respond to the additional evidence. (see here for the memo explaining this change).
The third change has the potential to improve the medical knowledge related to black lung:
(3) the Department of Labor will consult regularly with medical experts from the National Institute for Occupational Safety and Health (NIOSH) as medical trends emerge to determine whether certain recurring medical issues can be handled globally rather than in individual cases.
Of the three changes, the first—the request and funding for medical opinions to support miners before the District Directors—will have the most immediate impact and help the most miners.
In the work that we do at Appalachian Citizens’ Law Center, a typical pattern is the physician who the Department of Labor pays to examine a miner supports a miner’s claim for benefits, but once the claims examiner preliminarily indicates that he finds the physician’s opinion to be sufficient, the coal company pays other physicians to rebut the first physician’s opinion and do additional studies which may hurt the miner’s claim. In the past, the Department of Labor has only paid the original physician for her original examination and not to respond to later evidence. As a result, the miner may have had to pay out-of-pocket to get the physician to review and respond to the coal company’s additional evidence. This created a dilemma for miners; they would have to spend money to receive benefits. (A situation that sounds similar to that email scam about the Nigerian prince.) For disabled miners who were barely making ends meet, the cost of developing further evidence has often been the end of their claim. Under the new policy, the Department of Labor will request the original physician to respond and pay for her time. This levels the playing field between coal companies and miners and will avoid some miners’ abandoning their cases due to lack of money.
The second change is unlikely to make a significant difference because (based on the notations on recent ALJ decisions) there are few miners who have 15 years of coal mine employment and who win their claim of benefits before the District Director but do not have a lawyer. In addition—although I was mistaken when I initially read the memo—the attorneys from the Solicitor’s Office will not actually be representing the miner, but rather only becoming involved to seek a supplemental medical opinion. Essentially, this change parallels change #1, although the attorneys from the Solicitor’s Office will be involved before ALJs rather than before the District Directors. This limited involvement avoids potential conflicts between the government’s interest and miner’s, however this change does not help miners whose cases turn upon nonmedical issues or turn upon a medical issue that is best addressed by a physician other than the original Department of Labor physician (for example, the miner dies while the claim is pending before an ALJ and a pathologist’s opinion becomes more important than the pulmonologist’s.)
The impact of the third change—the collaboration between the Department of Labor and NIOSH—will depend on how many global medical issues the Department of Labor identifies. Hopefully, one of the issues that the Department of Labor will flag will be the question of how a pathologist’s measurements of pneumoconiotic nodules on autopsy correspond to what a radiologist would have measured on an x-ray. This question arises because the legal definition of complicated pneumoconiosis at 30 U.S.C. § 921(c) refers only to measurements on an x-ray film, so when an autopsy exists but an x-ray does not, the question arises about how to treat the autopsy’s measurements vis a vis the legal standard (which refers to x-rays). In 1999, the Fourth Circuit Court of Appeals dealt with this issue in Double B Mining, Inc. v. Blankenship, and indicated that it either had to be handled on a case-by-case basis (as it has for the past fifteen years) or perhaps could be handled globally. This is the type of recurring issue that NIOSH could potentially answer and avoid developing expert testimony in case after case. The effectiveness of NIOSH’s involvement will depend on whether similar tensions between the state of medical science and the legal standards can be identified.
The changes are certainly a step in the right direction. Issues remain in the black lung system, but it is good to see that the Department of Labor is identifying problems and taking steps to support miners and improve the black lung benefit system.
[note: This post was originally published on February 24, 2014, but updated on February 27, 2014 to correct my misreading of the memo from the Department of Labor’s Solicitor’s Office.]