Members of Congress Criticize Proposed DOL Rule that Could Help Coal Companies Hide Medical Evidence from Miners and Widows

Supporting disabled coal miners and their widows, seven Members of Congress signed a letter to Secretary of Labor Thomas Perez, criticizing the Department of Labor’s proposed rule that could encourage coal companies to withhold medical evidence from claimants seeking federal black lung benefits.  The letter is impressive not only for its political signal, but also for its analysis, which explains a major problem with the proposed rule.

The problem arises when coal companies hire a physician to provide an opinion regarding whether a miner is disabled by black lung.  As Chris Hamby engagingly explained in his piece about the tactics of the law firm Jackson Kelly (which gave rise to the case Fox v. Elk Run Coal, which was analyzed in a previous post), lawyers representing coal companies may withhold its physicians’ opinions if they indicate that the miner has black lung.  This is particularly worrisome in situations such as Gary Fox’s in which the coal miner goes back to work and further exposes themselves to harmful dust, even though—unknown to the miner—a majority of doctors agree that the miner has black lung.

As the letter explained, the proposed Department of Labor rule

would allow these practices to become more widespread by changing the evidentiary standards under which miners can access medical reports that have been prepared by company-hired doctors or medical experts.  Under existing regulations at 29 C.F.R. § 18.14(c), miners are entitled to receive copies of medical reports from non-testifying experts as long as they can show a “substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means”.  However, under section 18.5l(d)(4)(B) of the Department’s proposal, which adopts language nearly identical to Rule 26(b)(4)(D)(ii) of the [Federal Rules of Civil Procedure (FRCP)], miners would be prohibited from accessing these medical reports unless they can show “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means”.

Changing this evidentiary standard in this manner would make it all-but-impossible for miners to receive copies of medical reports that were prepared by coal operators’ doctors or their experts. Federal courts have described the “exceptional circumstances” requirement under the FRCP as a “very high” burden, a “heavy burden”, and “an even higher barrier” than the “substantial need” requirement. Furthermore, the Benefits Review Board (BRB), which hears appeals in Black Lung cases, has repeatedly refused to adopt the FRCP for Black Lung claims and has explicitly denied operators’ requests to impose the “exceptional circumstances” requirement on miners who are seeking copies of medical reports. In the 2007 case, Belcher v. Westmoreland Coal Co., the BRB upheld an ALJ’s decision to provide a miner with copies of these reports, and issued a clear decision on this matter:

Employer asserts that the Federal Rules of Civil Procedure (FRCP) are persuasive authority to support its argument that the report of a non-testifying expert witness does not have to be disclosed without a showing of exceptional circumstances. Contrary to employer’s assertion, the administrative law judge properly relied on 29 C.F.R. § 18.14 of the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. Cline v. Westmoreland Coal Co., 21 BLR 1-69 (1997). Section 18.14 provides, in pertinent part, that a party may obtain discovery regarding any relevant matter, not privileged, upon showing substantial need of the materials in the preparation of the party’s case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. 29 C.F.R. §18.14.

The importance of enabling miners to access these medical reports cannot be overstated. The reports not only provide evidence concerning miners’ eligibility for Black Lung benefits, they also contain diagnoses of miners’ medical conditions that can assist miners and their doctors as they pursue treatment to manage the disease. Yet, without analysis or justification, the proposed OALJ Rule would overturn this established precedent in the Federal Black Lung Benefits Program, to the clear detriment of miners.

The letter urges the Department of Labor not only to avoid making the system further tilted against miners and widows, but also to revise the current standard to make it easier to access medical evidence which is in coal companies’ files.

The letter also said the Department of Labor’s pilot program to help miners develop responsive medical evidence is an “important step in the right direction.”

The Department of Labor should ensure that any change to its rules does not harm disabled coal miners and their widows and take the advice of Senators Jay Rockefeller, Tom Harkin, Joe Manchin, and Bob Casey and Representatives Nick Rahall, George Miller, and Joe Courtney.

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